151
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 19, 1997
6 CITY OF CHICAGO, ) 10:00 a.m.
)
7 Defendant. )
8 VOLUME 2
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 FUTTERMAN
17
For the Defendant: MAYER, BROWN & PLATT
18 190 South LaSalle Street
Chicago, Illinois 60603
19 BY: MR. JAMES HOLZHAUER
MR. JEFFREY S. PIELL
20 MS. ANGELA K. DORN
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
152
Thompson - direct
1 (Proceedings heard in open court.)
2 THE CLERK: 95 C 1890, Ernest T. Brown versus City
3 of Chicago, on trial.
4 THE COURT: Ms. Thompson, would you please resume
5 the stand. You are still under oath.
6 Counsel?
7 DIANE THOMPSON, PLAINTIFFS' WITNESS, PREVIOUSLY DULY SWORN
8 DIRECT EXAMINATION
9 RESUMED
10 BY MR. FUTTERMAN:
11 Q. Yesterday, Sergeant Thompson, I believe you were talking
12 about your career with the Chicago Police Department, and we
13 were going through the history of your career, and we had
14 gotten to about 1988, I believe.
15 A. Yes, sir.
16 Q. And you'd just described your experience as an
17 administrative assistant for two commanding officers.
18 A. That's correct.
19 Q. So now we're in 1988, and can you tell me what was your
20 next position in the department?
21 A. I took an exam, was promoted to the rank of sergeant
22 December 1st, 1988.
23 Q. Where were you first assigned?
24 A. I was assigned to the youth division.
25 Q. What were your responsibilities as a sergeant in the
153
Thompson - direct
1 youth division?
2 A. My responsibilities included the supervision of
3 investigating officers that did follow-up investigations
4 relevant to child abuse, neglect, dependency, curfews,
5 missings. I also had the opportunity to work as a watch
6 commander in that capacity. That meant supervising the other
7 staffs who were also sergeants.
8 Q. Is a watch commander a position that's normally held by a
9 lieutenant?
10 A. Not in the youth division. Patrol, yes. In the youth
11 division it's not.
12 Q. Are there similarities between what a watch commander
13 does in the youth division and what a watch commander does in
14 a district?
15 A. To some extent, yes, there are some similarities.
16 Q. How are they different?
17 A. They're different in that the watch commander in patrol
18 is responsible for the desk responsibilities in regards to
19 prisoners, in regards to the lockup. In the youth division,
20 the watch commander does not have the same responsibilities.
21 I'm sorry.
22 Q. Go ahead.
23 A. They are similar in that when an arrest is made the watch
24 commander in the youth division has to review the arrest
25 report, make certain that the charges are appropriate for the
154
Thompson - direct
1 crime that's been committed.
2 Watch commander in the youth division is responsible
3 also for reviewing the case report to make sure all the
4 elements are there. The watch commander in the youth division
5 is also responsible for the staffing in regards to deportment
6 of officers for investigation purposes, similar to that in
7 patrol.
8 Q. Are there any other significant differences between a
9 watch commander in youth and watch commander in patrol?
10 A. Significant, no, sir.
11 Q. How long were you in that position?
12 A. Until 1989.
13 Q. And where were you assigned in '89?
14 A. I was detailed to the 6th District in patrol.
15 Q. And what -- in patrol what was your assignment? I'm
16 sorry, in the 6th District.
17 A. I was field supervising sergeant in the 6th District.
18 Q. What does a field supervising sergeant do?
19 A. A field supervising sergeant has really four
20 responsibilities: one is personnel management, another is
21 administration, another is patrol activity, and another one is
22 discipline, I believe. That's four.
23 Q. And as the field supervising sergeant were you the
24 supervisor in the field?
25 A. Yes, that's correct.
155
Thompson - direct
1 Q. And then throughout the 6th District?
2 A. The 6th District.
3 Q. How long were you detailed in that position?
4 A. I was detailed there for a year.
5 Q. So that takes us to somewhere in '90?
6 A. That's correct.
7 Q. And what's your next assignment?
8 A. In '90 I was -- the detail was cancelled and I was
9 returned to the youth division Area 1. That's the south side
10 area.
11 Q. Were you also -- did you also have time when you were
12 assigned back to Area 1, the south side, to work as a watch
13 commander?
14 A. Yes, I was watch commander, and also in the capacity of
15 an area commanding officer. That spot in the youth division
16 is held by a lieutenant.
17 Q. How long were you in Area 1 in those positions?
18 A. In Area 1, in 1980 -- 1990, either one or two years.
19 Q. What did you do when you left Area 1?
20 A. I had several assignments. They varied, because there
21 was a new commander in the youth division, so they varied. I
22 was considered to be a troubleshooter in the division. If
23 there was a problem in school patrol with staffing, whatever
24 the problems were, they would send me to school patrol.
25 Three months later I was in juvenile court
156
Thompson - direct
1 addressing some issues there, in regards to juvenile laws, in
2 regards to juvenile proposals.
3 I was also assigned briefly to the academy to assist
4 with developing exams for youth officers, those persons who
5 would be taking exams to be promoted to the rank of youth
6 officer.
7 What else did I do? I think that was about it in
8 Area 1.
9 Q. During that time did you spend any time acting as either
10 a watch commander or a field supervisor?
11 A. In Area 1, yes, sir, I did.
12 Q. Was that during the entire time?
13 A. Back and forth, that's correct, yes, sir.
14 Q. Now, that took us, I believe -- I'm sorry. That was from
15 '90 to about '92 did you just describe, or am I --
16 A. '91.
17 Q. Go ahead.
18 A. '91. And in '91, I went before what's called an academic
19 selection board, and applied for admission to Northwestern
20 University. That's the police administration training program
21 for sergeants and lieutenants. And it's a nine-month training
22 program in management, and I was accepted for that particular
23 program.
24 Q. Did you obtain a certificate from that program?
25 A. I obtained graduation -- graduating was called -- with an
157
Thompson - direct
1 advanced diploma. You participated in ceremonies of
2 Northwestern's graduation, the regular one in June.
3 Q. Were you also working during that time?
4 A. No, sir. That is, my job from 8:00 to 4:00 was to be a
5 student. That's a program where there are 21 persons from
6 around the world, lieutenants and sergeants, who are accepted
7 for the program, and we're there to become better managers.
8 Q. When did you graduate from that program?
9 A. In 1992.
10 Q. Okay. And then from '92 after completing that program,
11 where were you assigned next?
12 A. I was assigned to Area 4.
13 Q. And what was your position in Area 4?
14 A. Field supervisor for youth officers, and again acting as
15 a watch commander. I also worked in the meantime as a
16 supervising SIU. I forgot that.
17 Q. I'm sorry.
18 A. Prior to going to Northwestern, I was also assigned
19 briefly as a troubleshooter in special investigations unit. I
20 had been a youth officer there years before that, and asked to
21 go back to that position as a supervisor.
22 Q. That was just before attending Northwestern?
23 A. Going to Northwestern, that's correct.
24 Q. Now, in Area 4, I believe you just said --
25 A. Yes, sir.
158
Thompson - direct
1 Q. -- how long were you in Area 4 after graduating from
2 Northwestern?
3 A. Approximately four years. I'm sorry. '92 to about '96.
4 Q. And you were in a supervisory capacity throughout that
5 time period?
6 A. Yes, that's correct.
7 Q. And in '96 where were you assigned?
8 A. To Area 1. Again.
9 Q. And in Area 1 what was your role there?
10 A. Again as a watch commander and a supervising sergeant.
11 Q. And are you still in Area 1?
12 A. No. I'm currently in the 5th District.
13 Q. When did you transfer?
14 A. February 1997. February of 1997.
15 Q. And I think, I believe you already described your current
16 duties in the 5th District.
17 A. Yes, I did.
18 Q. So based on your experience and observations over these
19 20 plus years on the job, do you feel that you're familiar
20 with what Chicago police lieutenants do?
21 A. Yes, sir.
22 Q. And how are you so familiar? What made you familiar with
23 what Chicago police lieutenants do?
24 A. Based on my assignments, I've had the opportunity to work
25 in the capacity as a lieutenant in the youth division. I
159
Thompson - direct
1 worked very close with the lieutenants that I'm assigned to
2 currently in patrol.
3 An example is when there was a hazardous material
4 spill on the south side of Chicago, I was asked to do the
5 coordination for all of that for the lieutenant on the scene.
6 Q. Now, did you take the lieutenants' promotional exam in
7 1994?
8 A. Yes, sir, I did.
9 Q. Did you prepare for that test?
10 A. Yes, sir, I did.
11 Q. When did you start preparing for that exam?
12 A. Approximately a year prior to the exam itself.
13 Q. About 1993?
14 A. Yes, sir.
15 Q. And how did you prepare? What did you do to prepare?
16 A. Took all of my current orders, notices, and made sure
17 that they were all current, obtained all the communications,
18 COS messages that might have changed and updated those
19 situations.
20 Q. What are COS messages?
21 A. Out communications. What it is is sometimes there is a
22 general order, and the change comes from research and
23 development that something is being changed by that order. We
24 have all the updated orders.
25 THE COURT: Slow down just a little bit.
160
Thompson - direct
1 THE WITNESS: That was the first thing I did, was
2 try and compare all of the data. Then I began to spend two
3 hours to four hours daily approximately six days a week in
4 reviewing the material.
5 Looked over some of the old exams that had been
6 given by the police department, signed up for some courses
7 also in regards to that; joined approximately four study
8 groups in preparation for the exam.
9 BY MR. FUTTERMAN:
10 Q. You said you signed up for some courses as well?
11 A. Yes, that is correct.
12 Q. What courses did you enroll in to help prepare you for
13 the exam?
14 A. One of the ones -- there were two I actually paid for and
15 enrolled in. One was called the Conley Group, C-O-N-L-E-Y,
16 which dealt with the in-basket, and the second one was a
17 partnership between the FOP and the Bernstein and Associates
18 group, which provided training for the in-basket also.
19 Those are the two I paid for. The other groups
20 were, of course, free and provided to all officers.
21 I also reviewed a tape that was provided by the
22 department in helping to prepare for the exam. That was
23 offered in the district level itself.
24 Q. You said you also participated in study groups.
25 A. Yes, that's correct.
161
Thompson - direct
1 Q. Can you describe what you did in the study groups?
2 A. In the study groups, one met Thursday evenings at
3 University of Illinois, and at that group you were assigned a
4 general order to review. You developed questions from the
5 order itself. You forward those questions to the coordinating
6 personnel of that particular study group. They then develop
7 an exam.
8 So each Thursday you were given an exam of all the
9 notices you supplied to them for coordination. So that was
10 each Thursday where a group got together, over 102 officers
11 came together in the U of I and studied together. After the
12 exam was administered it was scored, then you would discuss
13 any questions you would have about the questions themselves.
14 Q. Did you believe you studied hard for the exam?
15 A. Exceptionally hard, sir.
16 Q. And you believe you studied appropriately for the exam?
17 A. Yes, sir. I was in study groups on Thursdays, Saturdays
18 and Sundays.
19 Q. Now, the test itself, the lieutenants promotional exam
20 itself had three parts; is that right?
21 A. That is correct.
22 Q. The oral part, the written part, and the in-basket part?
23 A. That is correct.
24 Q. I'd like to ask you to focus really on the in-basket
25 part.
162
Thompson - direct
1 MR. FUTTERMAN: May I approach the witness?
2 THE COURT: You may.
3 BY MR. FUTTERMAN:
4 Q. I'd like to show you what's been marked Defendant's
5 Exhibit 15, which I believe has been admitted into evidence as
6 one of the stipulated exhibits.
7 Sergeant Thompson, can you tell us what Defendant's
8 Exhibit 15 is?
9 A. It is a copy of the in-basket that was administered by
10 the Chicago Police Department for the lieutenants in-basket
11 simulation.
12 Q. Is that the in-basket portion of the test that you took
13 in 1994?
14 A. I believe it is, sir, yes.
15 Q. Generally, can you describe to the Court what the
16 in-basket test generally required you to do?
17 A. There's a compilation of approximately maybe a hundred
18 sheets of paper, and you're required to familiarize yourself
19 with the information in the documents themselves, and then go
20 back and answer the questions, 60 questions in reference to
21 the documents that are provided in the stack of sheets here.
22 Q. Those 60 questions, were they open-ended questions or
23 multiple choice questions?
24 A. Multiple choice questions.
25 Q. And were you given a specific amount of time in which you
163
Thompson - direct
1 could answer those multiple choice questions?
2 A. Yes, we were.
3 Q. Do you remember how much time you were given?
4 A. I believe it was an hour and a half to answer the 60
5 questions.
6 THE COURT: How long to read the papers?
7 THE WITNESS: It might have been two hours, an hour
8 and a half or two. I don't recall the exact time.
9 THE COURT: Can you direct me to this exhibit,
10 Counsel, where the timing is set forth?
11 MR. FUTTERMAN: Sure.
12 THE COURT: I'm looking at page 3, which is Bates
13 8429. It says an hour and a half to complete the test. I
14 don't know whether that includes reading the --
15 THE WITNESS: No, sir. It does not.
16 MR. FUTTERMAN: Page 2, they're given two and a half
17 hours.
18 THE WITNESS: To review.
19 MR. FLAXMAN: He doesn't have the page.
20 MR. FUTTERMAN: Your Honor, that's on page Bates
21 stamp 8452.
22 THE COURT: Okay.
23 MR. FUTTERMAN: Thank you.
24 BY MR. FUTTERMAN:
25 Q. Sergeant Thompson, in your experience, was this in-basket
164
Thompson - direct
1 exercise representative of what Chicago police lieutenants
2 actually do on the job?
3 A. No, sir, not at all.
4 Q. In your 20 plus years of experience on the job, have you
5 ever known a Chicago police lieutenant to have to review and
6 organize over a hundred pages of written materials, and then
7 answer multiple choice questions in a time frame?
8 A. No, sir.
9 Q. In all of your experience as a police officer, have you
10 ever seen a Chicago police lieutenant obtain his or her work
11 through an in-basket?
12 A. No, sir.
13 Q. How do Chicago police lieutenants receive their work?
14 A. Through the commanding officers book, which is a ledger
15 that has information from the DC, district commander of the
16 district, and that information is put in the book whenever it
17 comes in. It's available to each watch commander, each
18 lieutenant.
19 Q. What sort of information does the -- is it called a CO
20 book?
21 A. CO book. That's correct.
22 Q. What information does the CO book contain?
23 A. It contains information about staffing, it contains
24 information about details, it contains information about crime
25 situations in the district, reports that are due, data by
165
Thompson - direct
1 director of patrol. It's all in the CO book.
2 THE COURT: You're going very, very fast.
3 THE WITNESS: I'll slow down some more, then.
4 BY MR. FUTTERMAN:
5 Q. What specifically are Chicago police lieutenants required
6 to do with the CO book? What are their responsibilities
7 regarding the CO book?
8 A. They're responsible to review it daily, they're
9 responsible for knowing the information in the CO book,
10 they're responsible for making the information available to
11 the sergeants as well as the line officers.
12 Q. Do they have to organize the materials that are in the CO
13 book?
14 A. No, sir. The materials are organized by the district
15 commander's office as well as the watch secretary. A watch
16 secretary works in the desk area, and prior to roll call that
17 person would have come in and sorted out information in
18 regards to what has been put into the CO book.
19 The watch commander/lieutenant is given a list each
20 day of who is going to be working their beat cars, their beat
21 assignments, their foot patrol assignments. That's done by
22 the watch secretary.
23 Q. So the Chicago Police Department is a paramilitary
24 organization, is it not?
25 A. That is correct.
166
Thompson - direct
1 Q. So what you're saying is those decisions and those
2 organizational decisions are made first before the lieutenant
3 gets a copy of the CO book; is that right?
4 A. That is correct.
5 Q. And the lieutenant's role in the chain of command is to
6 be sure that what's in the CO book is enforced?
7 A. That is correct.
8 Q. Within his or her district?
9 A. Yes.
10 MR. PIELL: Your Honor, objection. We'll let the
11 last few questions go by, but we'll object to the leading
12 nature of these questions.
13 THE COURT: Try not to lead. Try not to lead,
14 Counsel.
15 BY MR. FUTTERMAN:
16 Q. How do field supervisors get their work, lieutenants,
17 when they're playing the role of field supervisor?
18 A. From the watch commander and from the CO book also.
19 Q. Are they given a hundred pages of written materials and
20 asked to organize them?
21 A. No, sir.
22 Q. Now, in addition to the fact that a lieutenant would not
23 do the type of work required by the in-basket test, can you
24 give the Court any other examples of how the in-basket test is
25 not representative of what Chicago police lieutenants actually
167
Thompson - direct
1 do?
2 A. It includes information on scheduling, it includes
3 information about who should work with whom. It would include
4 information about crossing guards, it includes information in
5 regards to -- in regards to furloughs.
6 Those are the basic ones that I can recall that are
7 different than what the lieutenants in our department are
8 required to have the responsibilities for doing.
9 Q. Let's talk first about scheduling. Now, did the test
10 require you to arrange schedules, or time due slips, or
11 anything of that nature?
12 A. Scheduling, yes, it did. Several questions, especially
13 the last, maybe the last ten required scheduling information.
14 Q. Now, do Chicago police lieutenants plan or create
15 schedules?
16 A. No, sir.
17 Q. Do lieutenants --
18 A. The requirements --
19 Q. I'm sorry.
20 A. The requirements are done by the district commander in
21 regard to staffing requirements, how many sergeants are to be
22 working, how many people are supposed to be assigned to beats,
23 rapid response cars. That comes from the area deputy chief
24 down to the district commander, and then to the various
25 watches as to staffing and manpower.
168
Thompson - direct
1 The watch secretary has the responsibilities each
2 day to come in and make sure that those assignments are
3 fulfilled. They're actually done the day before. Today's
4 schedule -- today is Wednesday, the schedule is prepared for
5 tomorrow's date by the watch secretary.
6 Q. Thank you.
7 At the district level is it then the watch secretary
8 who has that primary responsibility?
9 A. Of filling out that form, yes, sir.
10 Q. What if anything is the lieutenant's role with regard to
11 scheduling?
12 A. The lieutenant doesn't have a role in regards to
13 scheduling. The watch commander approves the assignments done
14 by the watch secretary, and then they're posted for review as
15 to the assignments by the various officers and supervisors.
16 Q. You also mentioned something about a crossing guard plan
17 that was on the test.
18 A. Yes. The crossing guards are supervised by a crossing
19 guard liaison, who is often times a civilian, not a sworn
20 member whatsoever.
21 And by department policy of Chicago, the lieutenant
22 and all supervisors have the responsibilities of ensuring that
23 crossing guards are properly uniformed, that they're doing
24 their duty and they cover their post.
25 But as far as direct supervision, that is done by
169
Thompson - direct
1 liaison for the crossing guards. Anything else as to the
2 crossing guards is dealt with between the district commander
3 and the liaison or the coordinator for the crossing guards.
4 Q. So lieutenants do not have any role then in developing a
5 crossing guard plan, do they?
6 A. No, sir. They only do inspectional kinds of activities
7 of crossing guards, of uniforms.
8 Q. As part of the test were you also required to review
9 another lieutenant's notes?
10 A. Yes.
11 Q. Is that something that a Chicago police lieutenant would
12 ever do?
13 A. No, sir. That terminology of notes is very unfamiliar to
14 me. We only use what's called to-from subject reports.
15 Throughout the in-basket exam itself, there was a reference to
16 reviewing someone's notes, reviewing somebody's notes, here
17 are my notes about that.
18 Q. Slow down just a little bit.
19 A. So there was no reference in our department of anyone
20 having notes. We do actual reports, or we do actual forms.
21 We do not do notes.
22 Q. In your 20 plus years of experience have you ever seen a
23 lieutenant's notes?
24 A. No, sir.
25 Q. I'd like to direct your attention back to the test
170
Thompson - direct
1 itself, Defendant's Exhibit No. 15 that you have in front of
2 you. I'd like you to turn to question No. 24.
3 THE COURT: Give me a page number.
4 MR. FUTTERMAN: Which is on page 11. Which is Bates
5 number 8437, your Honor.
6 BY MR. FUTTERMAN:
7 Q. Sergeant, have you found question No. 24?
8 A. Yes, sir.
9 Q. And D is indicated to be the correct answer; is that
10 right?
11 A. That is correct.
12 Q. Can you explain the type of work that was required of you
13 -- that would be required of you to answer that question
14 correctly on the test?
15 A. I would have had to have gone to locate Lieutenant
16 Joseph's notes, and the statement in regards to the CR
17 investigation of another sergeant. And the notes, once again,
18 would have been an item or an article that is not used by the
19 Chicago Police Department.
20 Q. I'd like you -- I'm sorry.
21 THE COURT: Are those notes in here?
22 MR. FUTTERMAN: Yes. There are many notes.
23 THE COURT: Well, the ones referred to in question
24 24.
25 BY MR. FUTTERMAN:
171
Thompson - direct
1 Q. Sergeant, can you find an example in the written
2 materials of the notes that you're speaking of?
3 A. I'd have to sort through the whole stack of pages here to
4 locate the notes.
5 MR. PIELL: Counsel, you might want to look at 8466
6 or 8475.
7 BY THE WITNESS:
8 A. On page 8497 there are some notes, Roberta Joseph's.
9 BY MR. FUTTERMAN:
10 Q. 8497?
11 A. That's one of them, yes.
12 THE COURT: 8497?
13 THE WITNESS: Yes, sir.
14 BY MR. FUTTERMAN:
15 Q. Would Chicago police lieutenants in practice have to do
16 the things required of you to answer question No. 24
17 correctly?
18 A. No, sir. I would not have to find someone's notes in
19 regards to this.
20 Q. I'd like you now to review -- let me turn back. Question
21 No. 27 -- I'll find the page in a moment -- which is 8438.
22 A. 27?
23 Q. Yes.
24 A. I have that.
25 Q. Have you reviewed it? What would you need to do to
172
Thompson - direct
1 answer that question correctly?
2 A. I would have had to go through the notes, have sorted
3 them out to determine which of the lieutenants would have had
4 the assignment for the investigation or the CR number; would
5 have had to establish that there was a relationship between
6 Sergeant Carson or Lieutenant Epsy or Lieutenant Watkins;
7 would have then also go and find in the notes the personnel
8 assignment to find out which of the lieutenants Sergeant
9 Carson was assigned to and being supervised by.
10 Q. Is this something that a Chicago police lieutenant would
11 have to do in practice on the job?
12 A. No, sir.
13 Q. Why not?
14 A. Because I would have had, as a lieutenant, the
15 information provided to me on the watch assignment forms, who
16 was assigned to whom.
17 Q. And would you generally know the people on your watch?
18 A. Yes, sir.
19 Q. So you wouldn't have to look it up in the papers?
20 A. Not through a stack of forms like this, no, sir.
21 Q. I'd like you now to review question 28, which is on the
22 same page, 8438.
23 A. Yes, sir.
24 Q. What would you have to do to answer that question
25 correctly?
173
Thompson - direct
1 A. I would have had to go through the stacks again and then
2 determine which of the sergeant's officer -- if there was
3 going to be counseling of an officer, that would have been
4 assigned to the one of three sergeants that's listed. I would
5 have to go and establish the fact from the personnel roster
6 who was Officer Simmons assigned to, number one, and number
7 two, that there was no relationship between the two that would
8 compromise the counseling or investigation of this officer.
9 Q. Now, would a Chicago police lieutenant on the job have to
10 go through those sorts of papers to solve this problem?
11 A. No, sir.
12 Q. What would a Chicago police lieutenant have to do?
13 A. Would have had that information available through the
14 watch assignment.
15 Q. How about question No. 32, if you can take a look at
16 that, which is on page 8440.
17 A. 32?
18 Q. Yes.
19 A. And your question is?
20 Q. My question, I'm sorry: What would you need to do to
21 answer that question correctly?
22 A. Well, the correct answer with this particular one is in
23 regards to the coverage at school crossings when crossing
24 guards are unavailable. Again, there is a crossing guard
25 liaison or coordinator who would have that responsibility.
174
Thompson - direct
1 He or she would get on the police radio, notify the
2 dispatcher, I need a car to cover that particular crossing.
3 The sergeant in that instance, if he or she passed that
4 location, would ensure that the sergeant showed up at that
5 location to cross the children. But as far as the assignment
6 and plan of personnel coverage, that would not have been done
7 by a sergeant.
8 Q. Would that have been done by a lieutenant?
9 A. No, sir.
10 Q. One more question, just as an example.
11 If you could turn to question No. 47, which is Bates
12 No. 8445.
13 After you review that question, can you please tell
14 the Court what you'd have to do to answer that question
15 correctly on the test.
16 A. Once again, to locate Lieutenant Joseph's notes; would
17 have had to review all of the officers requested time to be
18 off for that day, look at the assignments for details from the
19 district commander's office in regards to this day, and decide
20 which day is better for Sergeant Woodward to be off in
21 December of '84.
22 Q. Are these the sort of things Chicago police lieutenants
23 do on the job?
24 A. No, sir. When a request for time due is submitted, it's
25 submitted to the watch commander's office, put into a file,
175
Thompson - direct
1 then on the day or two before the assignment is to be given,
2 time to be given, the watch secretary again pulls the slips,
3 look at the manpower coverage, and then see if that person can
4 be off.
5 Q. So again, it's something that's a primary responsibility
6 of somebody other than the lieutenant?
7 A. That is correct.
8 Q. What if anything would be the lieutenant's
9 responsibilities with regard to that issue?
10 A. In regards to this issue? None whatsoever.
11 Q. I'd like to talk to you a little bit about conditions
12 under which you took the in-basket exam.
13 First, where did you take the test?
14 A. The test was taken by me at Daley College, in a classroom
15 setting.
16 Q. And physically, where did you sit? Did you sit -- did
17 you have a table, a desk?
18 A. I sat at a student's desk, which is like a high school
19 desk. And from there I was given the information package to
20 sort out and assimilate it relevant to the various questions
21 that were going to be asked.
22 Q. Do you believe you had adequate space to organize the 100
23 plus pages of written materials?
24 A. No, sir. And in fact, the two classes that I took
25 earlier in regards to the in-basket, each time we took the
176
Thompson - direct
1 simulation of the in-basket, a table was provided as though
2 you were in an office with a desk setting. You were able to
3 sort through and label at that point across in front of you
4 all the information.
5 At the Daley College the desks were for high school
6 students or college students. I ended up using the floor, the
7 space behind me, around me, wherever I could to lay these
8 documents, and then try to retrieve them based on the various
9 questions that were asked in the multiple choice.
10 Q. In your experience on the job, including your own years
11 as a watch commander, do watch commanders have to review these
12 kind of written materials on the floor of their office?
13 A. No, sir.
14 Q. Where do they do their paperwork?
15 A. The watch commander has an office with a desk, sir.
16 Q. Do you believe that these space constraints affected your
17 performance on the test?
18 A. Absolutely, sir.
19 Q. Why?
20 A. I've been on the job 20 years. In 20 years I've never
21 had to work in these kind of space constraints in regards to
22 any of my assignments, whether it's for reviewing reports or
23 making assignments or anything follow-up. I never had those
24 kind of constraints to work up under, or space.
25 Q. Do you consider yourself an organized person?
177
Thompson - direct
1 A. Yes, sir.
2 Q. Were you able to organize those materials adequately on
3 the day of the test within the time constraints?
4 A. No, sir. My papers were on the floor, and unfortunately
5 somebody walked by and kicked one of the folders, which caused
6 them to spill out. And that, of course, affected my time
7 trying to reorganize that folder and put it back in sequence
8 and answer the questions.
9 Q. You stated earlier that you were given an hour and a half
10 to answer the multiple choice questions or to do the actual
11 question part of the test.
12 A. Yes, sir.
13 Q. Do you feel that you had sufficient time to answer all
14 the questions correctly?
15 A. No, sir.
16 Q. Why not? Did you run out of time?
17 A. Yes, I did run out of the time, but the problem was the
18 physical constraints that I had in regards to in the work
19 time, once the folder got kicked over by someone going to the
20 washroom, it disorganized my sequence of trying to answer the
21 questions, trying to pick up the documents that came out of
22 the folder, trying to put them back in sequential order and
23 going from there.
24 Q. Is it your experience that Chicago police lieutenants
25 operate under similarly rigid time constraints when doing
178
Thompson - direct
1 their paperwork?
2 A. No, sir.
3 Q. And do you believe that these time constraints affected
4 how well you did on the test?
5 A. Yes, sir, they did.
6 Q. In preparation for this trial, were you given a copy of
7 the in-basket test with the answer key?
8 A. Yes, sir, I was.
9 Q. What did you do with them?
10 A. I took it to my residence, took off the answer key, put
11 out a clock, timed myself, read the materials again, and then
12 commenced to take the exam.
13 But I took it at a desk in my home with adequate
14 space, adequate lighting, and no interruptions in regards to
15 me answering the questions.
16 Q. So you didn't take the test on the floor, did you?
17 A. No, sir.
18 Q. Were you able to answer the questions correctly at your
19 home without the artificial time and space constraints?
20 A. Yes, sir, I was.
21 MR. FUTTERMAN: Your Honor, if I may approach
22 again.
23 BY MR. FUTTERMAN:
24 Q. Approximately how long did it take you to take the test
25 when you took it at home to get all the questions right?
179
Thompson - direct
1 A. An hour and 45 minutes.
2 MR. FUTTERMAN: Your Honor, if I may approach.
3 THE COURT: Did they give you the questions with the
4 material originally, or did --
5 THE WITNESS: No, sir.
6 THE COURT: So they gave you the two and a half
7 hours, and then they gave you the questions?
8 THE WITNESS: Yes, sir.
9 THE COURT: I see.
10 BY MR. FUTTERMAN:
11 Q. I'm now showing you what's marked Defendant's Exhibit
12 21. This, I believe, is another one of the stipulated
13 exhibits that have been admitted into evidence.
14 Sergeant Thompson, can you tell the Court what the
15 title of that document is?
16 A. Chicago police lieutenants examination final scores.
17 Q. And I'd like to direct your attention to page 3 of the
18 document.
19 I'm sorry. Before I do that, what information does
20 this document generally contain?
21 A. It contains the name of what I assume are sergeants,
22 their addresses, their sex, their race, and their scores in
23 regards to the components of the exam, and their ranking.
24 Q. Now, I'd like to direct your attention to page 3, to --
25 and to find the line with the name Guy DeSalvo on it,
180
Thompson - direct
1 D-E-S-A-L-V-O.
2 A. Yes, sir.
3 MR. PIELL: Your Honor, we have a larger size of
4 this. May we hand you a copy of the blown-up size of this
5 exhibit?
6 THE COURT: I have it.
7 MR. PIELL: You're laboring on a smaller size.
8 THE COURT: I can handle it.
9 MR. PIELL: Actually, I think you're on a different
10 exhibit than he's on.
11 THE COURT: I'm looking at Exhibit 21.
12 MR. FUTTERMAN: Entitled Chicago police lieutenants
13 examination final scores. I think that's 22.
14 THE COURT: 22. I see. I see why you made that
15 offer now.
16 MR. FLAXMAN: The parties are working on getting
17 even a more legible version of Exhibit 22.
18 THE COURT: All right. Well, this is helpful.
19 BY MR. FUTTERMAN:
20 Q. Sergeant, what does the document indicate regarding
21 Mr. DeSalvo's score on the written portion of the test?
22 A. That his score was 121.
23 Q. Is that the same as your score on the written portion of
24 the test?
25 A. Yes, sir.
181
Thompson - direct
1 THE COURT: I'm looking for his name. Page 3?
2 MR. FUTTERMAN: Line No. 127, page 3. DeSalvo.
3 THE COURT: Okay.
4 BY MR. FUTTERMAN:
5 Q. I'm sorry. He had the same score on the written part of
6 the test as you did?
7 A. Yes, sir.
8 Q. Can you find what he scored on the oral portion of the
9 test? What does the document indicate?
10 A. He scored 13.
11 Q. Is that the same as your score on the oral portion of the
12 test?
13 A. Yes, sir.
14 Q. What did Mr. DeSalvo score on the in-basket portion of
15 the test?
16 A. On the in-basket, 56.
17 Q. Is this higher than your score on the in-basket?
18 A. Yes, sir, it is.
19 Q. What does the document indicate that was Mr. DeSalvo's
20 overall rank on the test?
21 A. His overall rank is 102.
22 Q. So according to his test results, Mr. DeSalvo is now a
23 Chicago police lieutenant?
24 A. Yes, sir.
25 Q. Sergeant Thompson, have you been promoted to the rank of
182
Thompson - cross
1 lieutenant as a result of the 1994 lieutenants' promotional
2 exam?
3 A. No, sir.
4 MR. FUTTERMAN: I don't have anything further.
5 CROSS EXAMINATION
6 BY MR. PIELL:
7 Q. Good morning, Sergeant.
8 A. Good morning, Attorney Piell.
9 Q. It's Piell.
10 You testified earlier that you had served as a watch
11 commander in the youth division in Area 4; is that correct?
12 A. That is correct.
13 Q. And you served as a watch commander in the youth division
14 in Area 1, correct?
15 A. That is correct.
16 Q. You have not, however, served as a watch commander in the
17 patrol division; isn't that correct?
18 A. That is correct.
19 Q. Isn't it true that when sergeants are promoted to
20 lieutenant, the majority of those new promotees go to the
21 patrol division?
22 A. Yes, sir.
23 Q. When you were a watch commander in the youth division,
24 you were responsible for reviewing overtime authorizations;
25 isn't that correct?
183
Thompson - cross
1 A. That is correct.
2 Q. And when you were a watch commander in the youth
3 division, you were responsible for manpower scheduling?
4 MR. FLAXMAN: Could I ask that Mr. Piell slow down
5 so I could be sure that I hear the questions.
6 THE COURT: What about Mr. Futterman? Who is
7 handling this witness?
8 MR. FLAXMAN: I'm just trying to hear the
9 questions. I'm not making an objection, and Mr. Futterman
10 will make the objections, but I think I'm having trouble
11 following his questions.
12 THE COURT: All right. Slow down a little.
13 BY THE WITNESS:
14 A. Would you repeat the question, please?
15 BY MR. PIELL:
16 Q. I apologize if I ask you the same question again, but I
17 will try to not do that.
18 As a watch commander in the youth division, you were
19 responsible for manpower scheduling; isn't that correct?
20 A. Not for manpower scheduling. That's done by the unit
21 secretary, but I ensured that the coverage was made of all the
22 assignments that were required. Not the scheduling itself as
23 to where they were to work.
24 Q. Do you recall that I took your deposition last week?
25 A. Yes.
184
Thompson - cross
1 Q. And you were under oath when you sat for that deposition?
2 A. That is correct.
3 Q. Do you recall at that deposition that I asked you the
4 following question, you gave me the following answer. Page
5 20, Counsel, line 11: "As watch commander in the youth
6 division, are you responsible for working in the field and
7 manpower situations when there is illnesses or leave
8 situations?
9 "Yes." That's what your answer was. Yes.
10 Next question: "Is that one of the significant
11 parts of the watch commander's job, manpower situations"?
12 And your answer was: "In youth division?"
13 And I then answered: "Yes."
14 And you said: "Yes."
15 MR. FUTTERMAN: I'd object as not impeaching.
16 BY MR. PIELL:
17 Q. Do you remember me asking those questions and you giving
18 those answers?
19 THE COURT: Your objection is well noted.
20 I sustain the objection. I don't see that as
21 impeaching.
22 BY MR. FUTTERMAN:
23 Q. When you were responsible for whatever responsibilities
24 you had for the manpower situation, you would agree it was
25 important to know the provisions and terms of the FOP contract
185
Thompson - cross
1 in handling those responsibilities?
2 A. Yes.
3 Q. As a watch commander in the youth division, you
4 investigated or directed investigations of cases involving on
5 duty or off duty police officers; isn't that correct?
6 A. That is correct.
7 Q. And as a watch commander in the youth division, you
8 investigated incidents where arrestees were hospitalized,
9 correct?
10 A. Yes.
11 Q. And as a watch commander in the youth division, you were
12 responsible for ensuring that arrestee processing was done in
13 compliance with CPD directives and orders, correct?
14 A. That is correct.
15 Q. When you were ensuring that arrestee processing was done
16 in compliance with CPD directives and orders, it was important
17 to have knowledge of those CPD directives and orders,
18 correct?
19 A. That is correct.
20 Q. As a watch commander, you reviewed forms and reports that
21 were submitted to you by patrol officers, correct?
22 A. No, sir. By youth officers.
23 Q. I'm sorry?
24 A. Youth officers.
25 Q. So you reviewed forms and reports that the youth officers
186
Thompson - cross
1 submitted?
2 A. The follow-up investigators.
3 Q. As a watch commander, you reviewed injury on duty
4 reports, correct?
5 A. That is correct.
6 Q. As a watch commander, you investigated complaints against
7 the police officers in the youth division, correct?
8 A. Repeat that again, please.
9 Q. As a watch commander, you investigated complaints, any
10 complaints that were filed against police officers in the
11 youth division?
12 A. That is correct.
13 Q. And as a watch commander you investigated --
14 A. May I say, if it was assigned to me. If an investigation
15 was assigned to me, yes, I would do the investigation. As a
16 watch commander in the youth division, I did not review other
17 sergeants' investigations. That was done by the lieutenant.
18 Q. Thank you.
19 As a watch commander, you investigated summary
20 punishment action requests; is that correct?
21 A. Yes.
22 Q. Is that term also referred to as SPAR, S-P-A-R?
23 A. S-P-A-R, that is correct.
24 Q. As a watch commander, you also reviewed case reports
25 prepared by youth officers, correct?
187
Thompson - cross
1 A. That is correct.
2 Q. So as a watch commander you came across a lot of
3 different types of paperwork?
4 A. That is correct. In the youth division, the sergeants
5 have that kind of responsibility and that kind of role.
6 Q. As a watch commander you also reviewed time due slips,
7 correct?
8 A. Yes, that is correct.
9 Q. And as a watch commander in the youth division, you
10 reviewed arrest reports prepared by youth officers, correct?
11 A. That is correct.
12 Q. And when you reviewed written arrest reports, you were
13 responsible for ensuring that the elements of the charge that
14 was identified in those reports were present in those cases,
15 correct?
16 A. That is correct.
17 Q. And to perform that task, you had to have the knowledge
18 regarding the elements of the charges that were involved in
19 those cases, correct?
20 A. That is correct. Or at least where to find the
21 information needed to validate it.
22 Q. Thank you.
23 You testified earlier about the conditions under
24 which you sat for the in-basket component of the lieutenants'
25 exam. Do you recall that testimony?
188
Thompson - cross
1 A. Yes.
2 Q. When you sat for the in-basket exercise, there were other
3 candidates taking the exercise in the same room as you, isn't
4 that correct?
5 A. That is correct.
6 Q. And isn't it also correct that all the other candidates
7 who sat in that room with you sat at the same type of desk
8 that you sat at?
9 A. That is correct.
10 Q. So you all had the same space limitations?
11 A. Yes, sir.
12 Q. And with respect to those other individuals who sat in
13 the same room with you during the in-basket exercise, they all
14 had the same time constraints or time limitation that you had
15 when taking the in-basket exercise?
16 A. Time constraints, yes.
17 Q. When you were given the in-basket component, you actually
18 weren't given a basket, were you?
19 A. No, sir.
20 Q. You were just given a packet of papers?
21 A. A packet of papers. Which were different than the ones
22 given to lieutenants in the patrol division.
23 Q. On your direct testimony -- strike that.
24 Just for clarification, in the patrol division, are
25 you aware of the fact that lieutenants often serve as watch
189
Thompson - cross
1 commanders?
2 A. I'm aware of that, yes.
3 Q. So there are captains who serve as watch commanders and
4 lieutenants who serve as watch commanders?
5 A. That is correct.
6 Q. And a lieutenant who serves as a watch commander on some
7 days may also serve as a field lieutenant on other days of the
8 week?
9 A. That is correct.
10 Q. Now, you testified before that as a watch commander, a
11 lieutenant does not deal with the details of scheduling
12 personnel. Do you recall that testimony?
13 A. Say that again to me, please.
14 Q. I believe you testified that when a lieutenant serves as
15 a watch commander, they're not responsible for scheduling on a
16 shift.
17 A. They don't do the actual scheduling.
18 Q. And I believe you said the watch secretary or the desk
19 sergeant does that scheduling?
20 A. The watch commander secretary does the scheduling.
21 Q. And who supervises the watch secretary?
22 A. The watch secretary is supervised usually by the desk
23 sergeant.
24 Q. And who supervises the desk sergeant?
25 A. The watch commander.
190
Thompson - cross
1 Q. And the time slips and overtime authorizations prepared
2 on the watch are reviewed by the watch commander, correct?
3 A. They are reviewed by the watch commander.
4 Q. And the watch commander is reviewing those documents to
5 make sure that they are prepared correctly; is that correct?
6 A. That is correct.
7 Q. And the watch commander is responsible for making sure
8 that those types of documents are prepared in compliance with
9 CPD directives and the FOP contract, correct?
10 A. Correct.
11 Q. With respect to your testimony regarding the crossing
12 guard duties, do you recall talking about crossing guard
13 responsibilities on direct?
14 A. That is correct.
15 Q. The in-basket exercise didn't require you to develop a
16 crossing guard plan, did it?
17 A. No, sir. The question asked that --
18 Q. I'm sorry. There is no question pending.
19 A. Oh.
20 Q. I believe you stated on your direct that there are
21 situations where -- strike that.
22 In a situation where crossing guards are not present
23 at a corner or wherever a crossing guard is needed, there is
24 some responsibility for the police department to cover that
25 crossing area; isn't that correct?
191
Thompson - cross
1 A. That is correct.
2 Q. And so if a sergeant is put on that position, that means
3 the sergeant is being moved from a different assignment; isn't
4 that correct?
5 A. That is not correct, sir. What happens, as I said
6 earlier, is that the crossing guard liaison, who is a
7 civilian, gets on the radio, notifies communication that I
8 have a post at 111th Street and Michigan, a school crossing
9 that needs coverage. Okay.
10 The communication person on the radio, dispatcher,
11 then finds out a beat that's available, a beat car, not a
12 sergeant, and then assigns that beat car to cover the
13 crossing, say from 9:00 o'clock to 9:30.
14 Q. So that beat car is assigned to a particular district
15 though, correct?
16 A. Yes.
17 Q. And so the watch commander for that district would have
18 some knowledge that a beat car has been assigned to a crossing
19 guard assignment?
20 A. Probably not, sir.
21 Q. You don't know that to be a fact, though, in all
22 situations; isn't that correct?
23 A. No, sir. I don't know that for a fact in all districts.
24 No, I don't know that.
25 Q. You testified earlier that -- you testified earlier about
192
Thompson - cross
1 a CO book, and that you received as a watch commander a lot of
2 information through a CO book. Do you recall that testimony?
3 A. Yes.
4 Q. You don't receive all the documents that you review as a
5 watch commander through that CO book, though; isn't that
6 correct?
7 A. That is correct.
8 Q. So you would receive things like arrest reports and case
9 reports outside of that CO book; is that correct?
10 A. That is correct.
11 Q. And other documents like a CR investigation report or a
12 SPAR form would not come to you through the CO book, correct?
13 A. That is correct.
14 Q. And there are occasions when you're working as a watch
15 commander when you receive more than one type of report or
16 other written information at any given time; isn't that
17 correct?
18 A. More than one report possibly. What I have observed,
19 maybe two or three at one time.
20 Q. Two or three different types of reports that you may
21 receive at the same time; is that what you're saying?
22 A. Not at the same time, no, but they are available. They
23 might need review. You might have people at your door with an
24 arrest report to be reviewed. You might have somebody with a
25 watch commander's log to be signed. But it's never all --
193
Thompson - cross
1 it's different entities that have to be addressed, but not all
2 at one time.
3 Q. That has been your experience as a watch commander in the
4 youth division, correct?
5 A. In the youth division and what I've observed in patrol.
6 Q. You testified earlier about some materials that were
7 provided in the in-basket exercise that are labeled as
8 lieutenant notes. Do you recall that testimony?
9 A. Yes.
10 Q. And I believe you testified that as a watch commander you
11 wouldn't receive lieutenant notes, but what you would receive
12 are documents that are called to-from subject reports; isn't
13 that correct?
14 A. That is correct.
15 Q. And there were some to-from subject reports included in
16 the materials provided in-basket simulation, correct?
17 A. There were some.
18 Q. And with respect to the lieutenant notes to which you
19 were referring, do you recall that those notes contained
20 factual information that was ostensibly provided by a
21 lieutenant in the exercise?
22 A. Repeat that again, please.
23 Q. I apologize. Do you recall with respect to the
24 lieutenant notes that you saw in in-basket exercise, that
25 those notes contained factual information?
194
Thompson - cross
1 A. Not being familiar with notes, lieutenants' notes, I
2 wasn't sure what to expect from them, sir.
3 Q. But what you did see was a document that was providing
4 you with some factual information?
5 A. Information. Factual I don't know, but information, it
6 was just notes.
7 THE COURT: Please wait until he finishes the
8 question before you start your answer.
9 BY MR. PIELL:
10 Q. You stated earlier in your testimony that you do certain
11 types of investigations when you serve as a watch commander,
12 correct?
13 A. That is correct.
14 Q. Have you ever taken over an investigation from some other
15 officer who is handling an investigation?
16 A. As a watch commander?
17 Q. Yes.
18 A. No, sir.
19 Q. Are you aware or -- strike that.
20 Is it possible in your 20 years of experience as a
21 Chicago police officer that there have been situations where
22 other officers have taken over investigations that were
23 started by other either sergeants or lieutenants or watch
24 commanders?
25 A. Yes.
195
Thompson - cross
1 Q. When you're doing an investigation of, say, a weapons
2 discharge incident, in the conduct of that investigation, do
3 you do any oral interviews for information?
4 A. In what capacity? As a sergeant, as a watch commander,
5 as a lieutenant?
6 Q. As a watch commander.
7 A. As a watch commander, yes.
8 Q. So you actually would talk to an officer who was on the
9 scene or involved to develop information?
10 A. That is correct.
11 Q. Correct?
12 If you'll recall, the in-basket exercise required
13 you to review arrest reports for accuracy and completeness;
14 isn't that correct?
15 A. Yes.
16 Q. The in-basket exercise required you to review documents
17 regarding a weapons discharge incident, correct?
18 A. Yes.
19 Q. And the in-basket exercise required you to review
20 documents regarding complaint register investigations,
21 correct?
22 A. Yes.
23 Q. And the in-basket exercise required you to review
24 documents regarding a summary punishment investigation?
25 A. Yes.
196
Thompson - cross
1 Q. With respect to the individual items on the in-basket
2 exercise that you went over on your direct, it's not your
3 testimony that the material needed to answer those questions
4 was not provided to you as part of the test, correct?
5 A. I'm sorry. Repeat that.
6 Q. When you took the in-basket exercise, you had all the
7 information provided to you that you needed to answer the
8 questions correctly in the packet of materials that came with
9 the testing booklet; isn't that correct?
10 A. Not relevant to the Chicago Police Department.
11 Q. In order to answer the questions that were included in
12 the in-basket exercise, the materials were provided to you
13 from which those answers could be derived; is that correct?
14 Or do you not know that?
15 A. The answer, the material was there.
16 Q. So it was provided in a packet?
17 A. In a format that was unfamiliar with the Chicago Police
18 Department.
19 Q. Thank you.
20 You testified earlier that you took this in-basket
21 exercise a second time, correct?
22 A. Yes, sir.
23 Q. And you took it a second time after your attorneys
24 provided you with a copy of the in-basket exercise?
25 A. That is correct.
197
Thompson - cross
1 Q. And this is the same exact in-basket exercise that you
2 took back in 1994 as part of the lieutenants' exam, correct?
3 A. Yes, sir.
4 Q. So you had seen all those materials before that were
5 included in the packet; is that correct? The materials in the
6 packet that were provided to you by your attorney were the
7 same materials that were provided to you by the City of
8 Chicago when you took the lieutenants' exam in 1994, correct?
9 A. Yes, sir.
10 Q. And the questions that you answered when you just took
11 the in-basket exercise recently were the same exact questions
12 that were asked to you before when you took the exam in 1994,
13 correct?
14 A. That is correct.
15 Q. So you had seen the materials and the questions before?
16 A. That is correct.
17 Q. Sergeant Thompson, you have no idea where you would end
18 up in a scale of scores if the in-basket component was
19 eliminated completely from the 1994 promotional exam, do you?
20 MR. FUTTERMAN: Objection.
21 THE COURT: Overruled.
22 BY MR. PIELL:
23 Q. Do you have any idea where you would end up if that
24 component was completely eliminated?
25 A. I would have been promoted.
198
Thompson - cross
1 Q. Do you have any direct knowledge or facts to show that
2 you would be in the top 108 candidates who took that
3 component, or took all three components that you would have
4 been in that top 108 if the in-basket component was
5 eliminated?
6 MR. FUTTERMAN: Again, this is beyond the scope of
7 her knowledge.
8 THE COURT: She testified about her relative
9 standing with the other sergeants, so I think it's a fair
10 question. If she knows.
11 THE WITNESS: Repeat the question, please.
12 BY MR. PIELL:
13 Q. One more time. You have no direct knowledge or any facts
14 to support your claim that if you eliminated the in-basket
15 component of the exam, you would have been promoted, you would
16 have been in the top 108 scores on this exam?
17 A. Based on the final scores that I have been presented this
18 morning, the answer would be yes, I would have been promoted.
19 My score was 121 in the written. So was Sergeant
20 DeSalvo. My oral was 13 out of 15, the same as his. Based on
21 information that was presented to me today, yes, I would have
22 been promoted, sir, if I did not have this in-basket of
23 material here.
24 Q. And you testified before that Sergeant DeSalvo came in
25 102 on his final score; is that correct?
199
Thompson - cross - redirect
1 A. Yes, sir.
2 Q. And you have no knowledge or any facts that Sergeant
3 DeSalvo would have been promoted or would have been in the top
4 108 scores if the in-basket component had been totally
5 eliminated from the test; isn't that correct?
6 A. I don't have statistical breakdown of what the company
7 used, no, I don't have that available. But based on who they
8 have promoted, and based on the written scores, and based on
9 the oral scores, I would have been promoted to the rank of
10 lieutenant, sir.
11 MR. PIELL: That's all I have. Thank you very much.
12 THE COURT: Thank you.
13 MR. FUTTERMAN: Just a few short questions.
14 REDIRECT EXAMINATION
15 BY MR. FUTTERMAN:
16 Q. Sergeant, during all the time you spent as a watch
17 commander, did you have access to a copy of a set of general
18 and special orders?
19 A. Yes, I do. Yes, I did.
20 Q. And did you also have access to a copy of the FOP
21 contract?
22 A. Yes, sir.
23 Q. Do you have access to the municipal ordinances?
24 A. Yes, I have my copies of all those that I carry with me
25 in the squad car.
200
Thompson - redirect
1 Q. When you were watch commander?
2 A. Oh, yes, as a watch commander there is a set in the watch
3 commander's office.
4 Q. Is that also true with the general orders and special
5 orders?
6 A. Yes, sir.
7 Q. What about the Illinois criminal statutes?
8 A. Yes, sir. It's available.
9 Q. In the watch commander's office?
10 A. In the watch commander's office.
11 Q. Are you able to look up any of these things?
12 A. Yes, sir.
13 MR. FUTTERMAN: I don't have anything else.
14 THE COURT: Anything else?
15 MR. PIELL: We're done.
16 THE COURT: Thank you sergeant, very much.
17 THE WITNESS: Thank you.
18 (Witness excused.)
19 MR. FLAXMAN: Before we proceed with our next
20 witness, there is an evidentiary question that perhaps you
21 could rule on.
22 In the pretrial order, the defendants have
23 identified a series of expert reports which the defendant
24 contends are admissible, the plaintiff contends they are not
25 admissible, they are hearsay, there is no hearsay exception.
201
1 If your Honor rules against the plaintiff on that,
2 then we'll be offering Dr. York's expert report, which he's
3 here to testify about. And I would ask your Honor to rule on
4 that legal issue at this time.
5 MR. HOLZHAUER: Your Honor, I think that's premature
6 at this point because Dr. York's report is not on the exhibit
7 list, so I don't think Mr. Flaxman can offer to admit that
8 report in any event.
9 Secondly, the hearsay, one of the hearsay rules that
10 I relied upon in indicating that they are -- they can be
11 admissible is that that's a matter on which the witness
12 testified, and it goes to his credibility on that testimony.
13 That's part of the 801 rules. I believe your Honor has to
14 hear the testimony before you can tell that.
15 In addition, I think under some circumstances,
16 depending upon the testimony, depending upon the nature of the
17 report and who it's produced for, it can be a record of
18 regularly conducted activity or a public record. So I think
19 that's the strongest claim for Dr. Barrett's first exhibit,
20 which has already been admitted.
21 THE COURT: His first report has been admitted?
22 MR. HOLZHAUER: That's correct.
23 MR. FLAXMAN: Yes. The plaintiff moved his first
24 report.
25 THE COURT: I'm having trouble locating the pretrial
202
1 order here. I suspect I must have taken it into chambers.
2 I don't see how an expert report would get admitted
3 over objection, except to the extent it was used for
4 impeachment purposes. I mean, I've never admitted an expert
5 report as such without something like that, or unless there
6 was an agreement.
7 So if this is a motion in limine, I would be
8 inclined to tell you that those reports are not coming in
9 unless -- I'd have to be convinced beyond any prediction that
10 I will give you right now.
11 MR. HOLZHAUER: Your Honor, I would refer you, I
12 think, to Rule 081 itself. Statements which are not
13 hearsay --
14 THE COURT: But they are hearsay. I assume you're
15 admitting them for the truth of what's in the report,
16 correct?
17 MR. HOLZHAUER: Your Honor, under the 801 (b)
18 definition the following things are not hearsay: a prior
19 statement by the witness if the declarant testifies at trial
20 and it is consistent with declarant's testimony and is offered
21 to rebut an express or implied charge of the declarant of
22 recent fabrication or improper influence or motive.
23 THE COURT: I think I just said that unless the
24 witness is being impeached somehow, they wouldn't be
25 admitted. They are always admitted under that rule on
203
York - direct
1 redirect, if that's where Mr. Flaxman goes with his cross. I
2 don't know whether that's where he'll go or not.
3 MR. HOLZHAUER: That's exactly my point, your
4 Honor. I think it's premature to rule on the admissibility of
5 these things. We're not sure that we're going to move to
6 admit them. We put them on our list because we may move to
7 admit them if the circumstances warrant.
8 THE COURT: I think we understand the rules.
9 MR. FLAXMAN: I do now.
10 Dr. York is our next witness.
11 (Witness sworn.)
12 THE COURT: Have a seat.
13 DR. KENNETH MICHAEL YORK, PLAINTIFFS' WITNESS, DULY SWORN
14 DIRECT EXAMINATION
15 BY MR. FLAXMAN:
16 Q. Could you state your name, please.
17 A. Kenneth Michael York.
18 Q. And what's your business or occupation?
19 A. I'm an assistant professor of management in the School of
20 Business Administration at Oakland University in Rochester,
21 Michigan.
22 Q. Let me show you what I think has been stipulated to as
23 Plaintiffs' Exhibit 135. If we could just take a minute to be
24 sure --
25 MR. HOLZHAUER: That's correct.
204
York - direct
1 BY MR. FLAXMAN:
2 Q. Is Plaintiffs' Exhibit 135 a copy of your curriculum
3 vitae?
4 A. That is correct.
5 Q. And does that set out your education and experience and
6 publications?
7 A. Yes, it does.
8 Q. And briefly, what do you have a Ph.D. in?
9 A. My Ph.D. is in industrial organizational psychology.
10 Q. And what does that mean?
11 A. An industrial organizational psychologist studies the
12 behavior of people at work, which involves such things as
13 recruitment selection, management development, performance
14 appraisal, equal employment opportunity issues and so on.
15 Q. Have you published articles in that field?
16 A. Yes.
17 Q. And do you teach in that field?
18 A. Yes, I do.
19 Q. Are you familiar with assessment centers?
20 A. Yes.
21 Q. How have you become familiar with assessment centers?
22 A. Assessment centers are a commonly used tool for
23 management development as well as for selection.
24 I've published a couple of articles in that area,
25 and also created a number of exercises that I use in the class
205
York - direct
1 to help my students understand what assessment centers are and
2 how they're used as well.
3 Q. Are you familiar with something called an in-basket
4 exercise?
5 A. Yes, the in-basket exercise is a frequently used exercise
6 in an assessment center.
7 Q. Did you become familiar with an in-basket exercise in the
8 course of your work as an IO psychologist?
9 A. Yes.
10 Q. Now, you were retained as an expert in this case; is that
11 right?
12 A. Yes.
13 Q. And what were you asked to do?
14 A. I was asked to look at the in-basket that was used in the
15 police lieutenants' exam to see if it was in fact a
16 traditional in-basket exercise that has been used in industry
17 for a number of years, or if it was not a traditional type of
18 test.
19 Q. And I gave you a copy of the in-basket; is that right?
20 A. Correct.
21 Q. And did you look at it?
22 A. Yes, I did.
23 Q. And then what did you do to answer the question I had
24 posed to you?
25 A. Well, I looked at all of the references that I could find
206
York - direct
1 relating to in-basket and assessment centers more generally to
2 see what people had used as in-baskets in the past in
3 industry, and what had been written about in-baskets for their
4 use both for developmental purposes and for selection
5 purposes, and got a good idea of the way that in-baskets are
6 traditionally done so I could form my opinion as to whether
7 this was a traditional in-basket or not.
8 Q. When you say you reviewed materials, what did you
9 review?
10 A. Well, I reviewed three basic different sources. First I
11 looked at what the textbooks had to say, the human resource
12 management textbooks. Textbooks generally indicate what the
13 state of the field is, the current state of knowledge in a
14 particular area. So I looked at human resource management
15 textbooks to see what they had to say about assessment centers
16 and about in-baskets in particular.
17 I also looked at practitioner articles.
18 Practitioner articles are articles that are written for people
19 who actually do human resources management. They are written
20 to help them to implement various procedures in recruitment
21 and selection, development, et cetera.
22 And then I looked at empirical articles, research
23 articles that investigated the validity of in-baskets'
24 reliability, ratings, issues, et cetera, scientific research
25 done on the in-basket to establish its validity and proper
207
York - direct
1 use.
2 Q. And do you remember how many of those items, those
3 practitioner academic textbooks items you looked at?
4 A. Approximately 75 to 80 articles. Somewhere in that
5 area.
6 Q. And after you submitted an opinion in this case, you were
7 -- you had your deposition taken; is that correct?
8 A. Yes.
9 Q. And after you had your deposition taken, did you get a
10 chance to review some criticisms of your conclusions prepared
11 by Dr. Barrett?
12 A. Yes, I did.
13 Q. After you received those criticisms, did you go look at
14 any more articles?
15 A. Before the deposition I had looked at approximately 60
16 sources. After the deposition I was up to about 77 or so.
17 Most of the additional references were inter-library loans
18 that didn't come in before the deposition, or were references
19 taken from the rebuttal.
20 Q. After reviewing all of those materials, did you -- as you
21 sit here now, do you have an opinion as to whether or not the
22 in-basket exercise in the 1994 lieutenants test is what you
23 would describe as a traditional in-basket?
24 A. This is not a traditional in-basket. It differs
25 fundamentally from the traditional in-basket in a number of
208
York - direct
1 significant ways.
2 In the first case, the traditional in-basket
3 presents the candidates with a collection of materials that
4 they are supposed to take actions on. There's memos, phone
5 messages, documents of all kinds, a variety of materials that
6 they take action on.
7 The assessors then evaluate the actions that the
8 candidates have taken with all of these items: what items
9 they have delegated to others; what items that they have
10 postponed; what meetings they have called, the agendas that
11 they have created for those meetings. And they have to
12 generate those answers themselves and decide what actions to
13 take.
14 In the in-basket here in the Chicago police
15 in-basket, the candidates have all that material in front of
16 them, but after they have looked at all the material, they
17 take a multiple choice test.
18 In looking at all the articles that I looked at,
19 using a multiple choice test to score the in-basket is very
20 unusual. A more traditional way to do it is to evaluate the
21 subjects on a variety of performance dimensions, or perhaps
22 use some kind of scoring key or some accounting rule to look
23 at how they acted on the items rather than to get a multiple
24 choice test.
25 The key difference is that in additional in-basket
209
York - direct
1 the subjects have to generate their own answers as opposed to
2 identifying or recognizing the correct answer in a list of
3 alternatives in each multiple choice question.
4 Q. Is that different, are those two tests different, Doctor?
5 A. Yes, they are very different. In the one case a person
6 has to look at all the materials and figure out the right
7 course of action from an infinite number of possible actions
8 that they could take.
9 In the multiple choice question, they have four or
10 five alternatives, and they have to choose which alternative
11 to take.
12 Q. Now, in the course of your review of the literature about
13 in-baskets, did you form an opinion as to whether or not an
14 in-basket exercise is a valid measure of selecting employees?
15 A. In-baskets have been used for many years to select
16 employees, and they traditionally have very good
17 reliabilities, very good validities, and low adverse impact.
18 So that's why they have been used for 30 or more years.
19 Q. Now, if the Chicago test is not a traditional in-basket,
20 is there any reason to believe it would have the same validity
21 and reliability as a traditional in-basket?
22 A. There is no way to know, because it's fundamentally
23 different. In the one case, you have a multiple choice test,
24 in the other case you have subjects coming up with their own
25 answers as to how to act on each item.
210
York - direct
1 It's so different a situation that you can't infer
2 the validity from the prior research that's done on
3 traditional in-basket designs. The validity of the in-basket
4 test in this case could be as good as a traditional in-basket,
5 it could be better, it could be worse. Until you do a
6 validation study you just don't know.
7 Q. When you say "do a validation study," what do you mean?
8 A. What I mean is that you would take the test scores and
9 see if they correlate with job performance. Essentially what
10 you're doing is seeing if the test predicts later on-the-job
11 performance.
12 Q. And if that hasn't been done, seeing if the test doesn't
13 predict later on-the-job performance, is there any way, of
14 which you're aware, that you can say whether or not the
15 in-basket as administered to the 1994 Chicago promotional
16 lieutenants test was valid?
17 A. Well, there is a number of ways that you could establish
18 the validity of the test.
19 I'm sorry. I should go slower.
20 There are three different ways that you could
21 establish the validity of the test: criterion-related
22 validity, content validity, and construct validity. In
23 criterion-related validity, you measure the correlation
24 between the test scores and job performance.
25 In construct validity, you measure some hypothetical
211
York - direct
1 construct, like administrative skills or leadership, and you
2 then see if the measure of that construct is a predictor of
3 later job performance.
4 In content validity, the test is a representative
5 sample of the job, and that requires a judgment as to whether
6 the test actually is a representative sample of the job.
7 Q. And -- okay.
8 THE COURT: What is construct again?
9 THE WITNESS: Construct validity is a test -- is a
10 measure of some hypothetical construct: administrative
11 skills, leadership, delegation, some hypothetical idea that
12 you're trying to measure. Once you have a measure of that,
13 you can then correlate that with a measure of job
14 performance. The most commonly used one you might find is a
15 measure of cognitive skills, or intelligence, and if that is
16 found to be related to later job performance, then the test
17 would be valid.
18 BY MR. FLAXMAN:
19 Q. Would administrative decision making be a construct?
20 A. That sounds like a construct to me.
21 Q. When you say "it sounds like a construct," what do you
22 mean?
23 A. Well, a construct is a scientific idea. It could involve
24 many different ideas. Just hearing the term, I can't know
25 what you exactly mean by that, but it sounds like a
212
York - direct
1 construct. It sounds like a collection -- it sounds like an
2 idea that explains a collection of possible behaviors.
3 Administrative skills might involve things like
4 ability to delegate, ability to prioritize, recognizing what's
5 important and what's trivial and so on. So it might involve a
6 lot of different things.
7 Q. If you had a test which you said measured administrative
8 decision-making, is that a content theory of development?
9 A. That sounds to me like it would be a construct that
10 you're trying to measure there.
11 Q. Now, you talked about the judgment for a content valid
12 test. For a construct valid test what do you need to say that
13 it's valid?
14 MR. HOLZHAUER: Objection, your Honor. Again, this
15 is the same objection I made the other day, but I think it's
16 even more so. Mr. Flaxman might be nodding that way.
17 This is way beyond -- he didn't talk anything about
18 validation strategy in his expert report, didn't purport to be
19 an expert on validation strategies in any sense.
20 MR. FLAXMAN: I was trying to explore the question,
21 your Honor, but it is beyond his report. I will admit that.
22 THE COURT: Well, I'll sustain the objection.
23 BY MR. FLAXMAN:
24 Q. Now, after your deposition, when you had a chance to
25 review Dr. Barrett's criticisms of your report --
213
York - direct
1 A. Yes.
2 Q. -- do you remember Dr. Barrett criticized your reliance
3 on assessing the work product of people who take an in-basket?
4 A. Yes.
5 Q. And is that assessment of the work product something that
6 you saw when you reviewed articles about in-baskets?
7 A. Yes. The traditional way that you evaluate candidate
8 performance in the in-basket is that the assessors look at
9 what the candidates have done in the in-basket. They look at
10 the memos that they've written, the phone messages they plan
11 to leave, the meeting agendas that they create, the tasks they
12 delegate to others.
13 Q. And is there any of that looking at the process by which
14 the answers were reached involved in answering these 60
15 multiple choice questions?
16 A. Generally what they're looking at is what they have done,
17 what they've completed. The end product. They don't watch
18 them actually doing the in-basket, sorting the materials, they
19 want to see what actions they've taken.
20 Q. Was that kind of assessment done on the test that you
21 looked at, the lieutenants' test?
22 A. No. In this case, the candidates could do whatever
23 sorting or collating, or whatever they wanted to do with the
24 materials, and then they took the multiple choice test, and
25 nothing that they did with the materials would affect their
214
York - direct
1 multiple choice score.
2 Q. Now, another one of Dr. Barrett's criticisms of your
3 conclusion was that assessing each candidate with assessors is
4 too expensive, that you didn't consider that a thousand people
5 were going to be assessed.
6 A. Yes.
7 Q. Did you revise your opinion based on that criticism?
8 A. I don't think so. I think that when you make selection
9 decisions, they're important decisions. You want to get the
10 right people in the job. There are consequences to making the
11 wrong selection decision.
12 My point of view is that human resource management
13 is an investment in your people that -- in the people that are
14 going to be doing the jobs. So the cost that you invest in
15 good selection decisions is returned in the higher quality of
16 candidates that you end up hiring into those positions.
17 Q. Do you recall that another one of Dr. Barrett's
18 criticisms was that his test was more objective than a
19 traditional in-basket?
20 A. Yes.
21 Q. And did that criticism cause you to change your opinion?
22 A. I don't think so. I think that in this case, an
23 objective test allows you to get a number. I'm not sure it
24 allows you to get a very good understanding of people's work
25 habits, the way that they handle items, the way that they
215
York - direct
1 understood the situation.
2 One of the advantages of the in-basket and one of
3 the reasons the in-basket was created in the first place is to
4 get a more thorough understanding of the management skills of
5 the candidates being evaluated.
6 When the in-baskets were created in the 1940s and
7 '50s, they were created to get away from paper and pencil
8 tests, because they provided only a limited view of candidate
9 behavior.
10 Putting people in the situation that they would find
11 themselves in in the job and seeing how they react, what
12 actions they would take would provide you with a more complete
13 picture of their management skills.
14 Q. Dr. Barrett also criticized your opinions because he
15 contended that his in-basket was very reliable. Did that
16 criticism cause you to change your opinion?
17 A. Well, in-baskets traditionally have fairly good
18 reliabilities and validities. A multiple choice test
19 obviously has very high validities. The only problem is
20 whatever small degree of error might come with some
21 machine-scored test, which is very small.
22 Q. You said high degree of validity on a multiple choice
23 test.
24 A. I'm sorry. High degrees of reliability on a multiple
25 choice test.
216
York - direct
1 Q. What's the difference between reliability and validity?
2 A. Reliability is the consistency of the measurement,
3 repeated measurement of the same thing which will get you the
4 same number. In the case of a test, if you gave someone a
5 test today and you gave them the same test a week from today,
6 they should get the same number. That's called test retest
7 reliability.
8 You can also measure the internal consistency of a
9 test. The key idea here is that the test, if it's measuring
10 the same thing repeatedly, should give the same answer.
11 Therefore reliability is the upper limit of validity.
12 Therefore the test can be no more valid than it is reliable.
13 So reliability is important. It's the first step to
14 test validity.
15 Q. But if you had a clock that was stopped at 2:00 o'clock,
16 would that be a reliable measure?
17 A. Well, I guess that's a trivial example of reliability.
18 Obviously it's giving you the same answer all the time, but
19 not the correct answer.
20 Q. Would that be a valid measure of the time?
21 A. It would not be a valid measure.
22 Q. Now, Dr. Barrett also criticized your opinions because he
23 argued that his in-basket was content valid.
24 A. Yes.
25 Q. And did his arguments about content validation cause you
217
York - direct
1 to change your opinions about whether or not empirical
2 evidence was needed to validate the particular test that we're
3 talking about here, the 1994 lieutenants in-basket?
4 A. No, I don't think so in this case, because the job that
5 we're talking about is a management job. It's a complicated
6 job, involves very many tasks that you have to do.
7 If that's the case, then it's very difficult to do a
8 content valid test for it. The more difficult it is to
9 measure the job performance of a particular job, the more
10 difficult it is to create a content valid test for it.
11 For example, if you have the job of data entry
12 clerk, creating a content valid test for that is relatively
13 simple. You sit them in front of a terminal, give them some
14 data to enter typical of the kind of data they would normally
15 enter in that job, and see how well they do.
16 If it's a managerial job it's more difficult,
17 because managers do many different activities throughout the
18 day. So it's more difficult to create a content-valid test.
19 MR. FLAXMAN: I have no further questions. Thank
20 you.
21 CROSS EXAMINATION
22 BY MR. PIELL:
23 Q. Good morning, Doctor.
24 A. Good morning.
25 Q. Greetings from a fellow Michigander.
218
York - cross
1 Just some questions about your background, to
2 start.
3 You have never developed any in-basket exercises for
4 employment selection purposes, have you?
5 A. No.
6 Q. And you have never developed a scoring key or any scoring
7 mechanism for an in-basket selection exercise, have you?
8 A. No.
9 Q. You have never administered an in-basket exercise for
10 employment selection?
11 A. No.
12 Q. You have never actively participated in any way in an
13 in-basket exercise for selection purposes, correct?
14 A. No.
15 Q. No, that's not correct?
16 A. That's correct. I have not.
17 Q. And you have not developed any selection procedures or
18 tasks for the purposes of employment; is that correct?
19 A. That's correct.
20 Q. And you never developed an in-basket or any other
21 assessment center for any police department or for any safety
22 position; is that correct?
23 A. Correct.
24 Q. Now, you're not here to offer any opinion regarding the
25 content of the specific questions asked on the Chicago Police
219
York - cross
1 Department in-basket exercise; is that correct?
2 A. That's correct.
3 Q. And you have no opinion as to whether the in-basket
4 component captured a sufficient portion of the job domain of a
5 lieutenant job; is that correct?
6 A. That is correct.
7 Q. You're not offering an opinion as to the method of test
8 validation performed by Dr. Barrett or Barrett and Associates,
9 correct?
10 A. Correct.
11 MR. FLAXMAN: Objection. That assumes there was a
12 method of test validation performed, which is a fact not in
13 evidence.
14 THE COURT: Therefore the answer is no.
15 MR. PIELL: Which I believe the answer was no.
16 BY MR. PIELL:
17 Q. And you are not offering an opinion as to whether the
18 in-basket exercise utilized in the 1994 Chicago Police
19 Department lieutenant exam was valid or not, correct?
20 A. Correct.
21 Q. In fact, you have no opinion as to whether this in-basket
22 test is content valid, correct?
23 A. Correct.
24 Q. You are not familiar with the Chicago Police Department
25 in any particularities or detail; is that correct?
220
York - cross
1 A. Not in any detail, no.
2 Q. You have no familiarity or knowledge with any municipal
3 police department in the country?
4 A. No.
5 Q. You have not done any specific work with any police
6 department; is that correct?
7 A. That's correct.
8 Q. You have no detailed knowledge about the job of police
9 lieutenant in the Chicago Police Department, correct?
10 A. Correct.
11 Q. And in preparing your expert report you didn't interview
12 or speak with any lieutenants in the Chicago Police
13 Department, correct?
14 A. Correct.
15 Q. You didn't interview any of the plaintiffs in this case,
16 correct?
17 A. Correct.
18 Q. You didn't speak with any police department personnel
19 from Chicago or any other city with respect to this case,
20 correct?
21 A. Correct.
22 Q. And at the time you issued your opinion in this matter,
23 you had not seen or reviewed the job analysis for the
24 lieutenant position prepared by Barrett and Associates,
25 correct?
221
York - cross
1 A. Correct.
2 Q. And you have not performed any job analysis on your own
3 for any rank in the Chicago Police Department, correct?
4 A. Correct.
5 Q. And isn't it true that you do not know the performance
6 dimensions that the in-basket for the Chicago Police
7 Department lieutenants exam was trying to test?
8 A. Correct.
9 Q. And you don't know what knowledge, skills, and abilities
10 were sought to be captured by the in-basket exercise of the
11 Chicago Police Department exam, correct?
12 A. Correct.
13 MR. PIELL: One second, please.
14 (Brief pause.)
15 BY MR. PIELL:
16 Q. Dr. York, you know who Dr. Gerald Barrett is, do you not?
17 A. Yes.
18 Q. And at a deposition you gave in this matter you conceded
19 that you were less of an expert than Dr. Barrett in test
20 validation because you lacked the practical real world
21 experience that he has?
22 A. Yes.
23 MR. FLAXMAN: Objection.
24 MR. PIELL: That's all I have. Thank you.
25 THE COURT: Wait a minute, counsel. There is an
222
York - cross - redirect
1 objection. You don't just walk away from an objection.
2 Your objection is based on what?
3 MR. FLAXMAN: It's argumentative, and it is not
4 relevant.
5 THE COURT: Overruled.
6 MR. PIELL: Thank you. That's all I have.
7 REDIRECT EXAMINATION
8 BY MR. FLAXMAN:
9 Q. All those things Mr. Piell asked you that you said you
10 didn't know, did you need to know about the job analysis
11 before forming your opinion that empirical evidence was
12 necessary before you could say that the Barrett in-basket had
13 the same validity as a traditional in-basket?
14 A. No, I didn't need that. I was just looking at the way
15 the test was administered and scored.
16 Q. So you didn't need to know -- you didn't need to talk to
17 any of the plaintiffs?
18 A. No.
19 Q. You didn't need to know anything about the job of
20 policeman?
21 A. No.
22 Q. In fact, all you needed to do was to look at the test and
23 do your library research?
24 A. Right. I needed to look at the test and read as many
25 articles as I could find on the in-basket, and see which ones
223
Hardy - direct
1 used a multiple choice for in-basket and which ones used a
2 traditional design.
3 Q. Now, Mr. Piell asked you whether you thought Dr. Barrett
4 is more experienced in test validation than you are. Do you
5 think Dr. Barrett is more experienced in doing library
6 research than you are?
7 A. I don't know. I've done quite a bit of it.
8 Q. Are you real good at library research?
9 A. For this project, I used every electronic resource that I
10 had available at Oakland University. Karl and Kuber, ABIN
11 form, Lewis, everything I could use to find the information
12 that's out there in various libraries.
13 MR. FLAXMAN: Thank you. Nothing further.
14 THE COURT: Anything else?
15 MR. PIELL: One second, please.
16 We have nothing further, your Honor.
17 THE COURT: Thank you. You're excused, sir.
18 (Witness excused.)
19 THE COURT: Do you have your next witness?
20 MR. FLAXMAN: Yes.
21 (Witness sworn.)
22 JUDGE F. HARDY, PLAINTIFFS' WITNESS, DULY SWORN
23 DIRECT EXAMINATION
24 BY MR. FUTTERMAN:
25 Q. Good morning, Sergeant. Could you please introduce
224
Hardy - direct
1 yourself to the Court and spell your last name for the court
2 reporter.
3 A. My name is Sergeant Judge F. Hardy. That's H-A-R-D-Y.
4 Q. Where do you work, Sergeant Hardy?
5 A. I'm currently assigned to the 4th District.
6 Q. I'm sorry?
7 A. I'm currently assigned to the 4th District.
8 Q. For the Chicago Police Department?
9 A. Yes.
10 Q. When did you begin working for the Chicago Police
11 Department?
12 A. My actual appointment day is 22 October of '73.
13 Q. Where did you start working when you were first assigned
14 to the department?
15 A. After leaving the police academy, I was assigned to the
16 3rd District.
17 Q. What were your initial assignments?
18 A. Patrol duties.
19 Q. How long were you in the 3rd District doing patrol?
20 A. Probably six to eight months.
21 Q. Where did you go after you left the 3rd District?
22 A. After leaving the 3rd District I was assigned to Chicago
23 Police Department's mass transit unit.
24 Q. And still as a patrol officer?
25 A. Yes.
225
Hardy - direct
1 Q. How long were you in mass transit?
2 A. About three or four years.
3 Q. And after mass transit, where did you go?
4 A. I went briefly to the 5th District. I stayed about a
5 month in the 5th District, maybe two months, and then I went
6 to the 22nd District.
7 Q. On both occasions still on patrol?
8 A. Yes.
9 Q. When that's on patrol, that's out in the field; is that
10 correct?
11 A. This is correct.
12 Q. After doing those couple months there, what was your next
13 assignment?
14 A. 1978 November I was promoted to youth officer.
15 Q. Where were you assigned as a youth officer?
16 A. My original assignment was Area 2 youth.
17 Q. Where is Area 2?
18 A. At the time that I was originally assigned, Area 2 was at
19 91st and Cottage Grove. It's later been moved to 727 West
20 111th.
21 Q. I guess what I meant was --
22 A. I'm sorry.
23 Q. -- what geographical area does that cover?
24 A. Far south side, far south and southeast side.
25 Q. How long were you working as a youth officer in Area 2,
226
Hardy - direct
1 approximately?
2 A. About two years.
3 Q. During that two-year period were you entirely out in the
4 field?
5 A. Yes.
6 Q. Where did you go after leaving Area 2?
7 A. I went back to patrol for a short stint. I was assigned
8 to Mayor Washington's security detail for a period of time.
9 Q. What were your duties on that detail, on Mayor
10 Washington's detail?
11 A. I did the house security in and around his house, and
12 occasional relief on the personal bodyguard detail.
13 Q. After that patrol assignment and the detail assignment to
14 Mayor Washington, where did you go next?
15 A. I was assigned back to the youth division.
16 Q. Back in Area 2?
17 A. Yes.
18 Q. And how long did you spend there?
19 A. I stayed a period -- when I -- when I came back to the
20 youth division, I went to Area 2, then 4, then 2, then 1.
21 Q. Okay. What were you doing during that time period in the
22 various areas?
23 A. The basic youth officer's duties, processing juveniles.
24 Q. And you were in the field again?
25 A. Yes.
227
Hardy - direct
1 Q. After going back and forth between those areas as a youth
2 officer, what did you do next?
3 A. In November of 1990 I was promoted to sergeant.
4 Q. Where were you first assigned as a sergeant in November
5 '90?
6 A. 3rd District.
7 Q. And what were your duties of your first assignment?
8 A. Field duties. Field supervisory duties.
9 Q. Okay. And how long were you working as a field
10 supervisor in that 3rd District?
11 A. Three or four months. I'm not -- about three or four
12 months.
13 Q. Where did you go from then?
14 A. I went to Chicago Police Department's public housing
15 unit.
16 Q. What was your title in the public housing unit?
17 A. I was the midnight watch commander and later became the
18 third watch watch commander.
19 Q. And how long were you working as a watch commander in
20 public housing?
21 A. About three years, two to three years.
22 Q. After you left public housing as a watch commander, where
23 did you go next?
24 A. 4th District.
25 Q. What was your assignment in the 4th District?
228
Hardy - direct
1 A. Field supervisor.
2 Q. I'm sorry. Back when you were working as a watch
3 commander, is that considered an inside or an outside job?
4 A. Inside.
5 Q. What does that mean -- what does an inside job mean?
6 A. Well, actually as a watch commander we were responsible
7 for the roll call functions, the check off from the previous
8 watches.
9 We were also responsible to ensure that anything
10 that was assigned to the particular watch that I was the watch
11 commander of, as the orders came out or came through the CO
12 book, that they were implemented and carried out.
13 Q. And then you said you went back into the field?
14 A. Yes.
15 Q. As a supervisor?
16 A. In the 4th District, yes.
17 Q. As field supervisor, what are your responsibilities?
18 A. To supervise the day-to-day activities of patrol officers
19 assigned to the 4th District, responding to assignments.
20 Q. About how long did you spend as a field supervisor in the
21 4th?
22 A. I'm still currently assigned, from the time I left public
23 housing to this date I'm still assigned to the 4th District.
24 Q. About how long has that been?
25 A. About three years.
229
Hardy - direct
1 Q. And you said you spent about two to three years as a
2 watch commander in public housing?
3 A. Yes.
4 Q. Have you -- do you have any particular management or
5 supervisory training, either before or during the time you've
6 been a Chicago police officer?
7 A. Yes, I attended the University of Illinois' supervisors
8 managerial course provided by the police department.
9 Q. Did you complete the course?
10 A. I sure did.
11 Q. When did you complete that course? Approximately what
12 year?
13 A. About two years ago.
14 Q. Based on your experience and observations on the job
15 since 1973, are you familiar with what Chicago police
16 lieutenants do?
17 A. Yes, I am.
18 Q. How are you so familiar?
19 A. Well, as a watch commander, I perform the duties that
20 would normally be performed by a lieutenant.
21 As a field sergeant, I worked very closely with the
22 lieutenants assigned to the districts in the fields, and on
23 occasions I'm called upon to act as a field lieutenant when we
24 don't have a field lieutenant up and available or assigned at
25 night, or if we have more than the normal or more than the
230
Hardy - direct
1 needed number of sergeants. Say we have three sergeants --
2 say we have four sergeants and we only need three, and there
3 is no 90 or no lieutenant available --
4 Q. 90 is lieutenant?
5 A. Yes. Then I could be assigned as 90 for that tour of
6 duty.
7 Q. And even as a field sergeant, who is your immediate
8 supervisor?
9 A. The watch commander.
10 Q. The lieutenant?
11 A. Yes.
12 Q. You took the lieutenants promotional exam in 1994?
13 A. Yes.
14 Q. You prepared for that exam?
15 A. Yes.
16 Q. How did you do so?
17 A. Well, I studied probably six months or eight months
18 before the test, materials that we thought would be part of
19 the test. I participated in three different study groups. I
20 put in, I would say, two hours a day for over eight months.
21 Q. Did you say you took any classes as well?
22 A. Yes. I took -- I paid for a class on how to do
23 in-baskets, and I belonged, like I said, to two studies groups
24 where we studied in-baskets, we studied oral briefings and
25 written examinations.
231
Hardy - direct
1 Q. When you said you were studying an average of two hours a
2 day, is that every day?
3 A. Yes.
4 Q. And really, again, I'd like to direct you -- I would like
5 to talk more about the in-basket portion of the exam.
6 MR. FUTTERMAN: May I approach, your Honor?
7 THE COURT: You may.
8 BY MR. FUTTERMAN:
9 Q. I'm showing you what's marked Defendant's Exhibit 15
10 that's been admitted into evidence. Can you tell the Judge
11 what that is?
12 A. This is the Chicago Police Department's lieutenants'
13 in-basket simulation.
14 Q. Is that the test that you took in 1994?
15 A. Yes.
16 Q. What did this test require you to do, in your opinion?
17 A. It required me to do a lot of reading, and answer
18 multiple choice questions.
19 Q. In your opinion, was the in-basket exercise
20 representative of what Chicago police lieutenants do on the
21 job?
22 A. In my almost 25 years as a Chicago policeman, working
23 very closely with the watch commander, working as a watch
24 commander, working very closely with lieutenants, this is
25 nothing that I've ever seen a lieutenant do in my years as a
232
Hardy - direct
1 policeman.
2 Q. Have you ever seen anything like an in-basket on the job
3 in a watch commander's office or in a field lieutenant's car?
4 A. Never.
5 Q. Well, how do lieutenants get -- how do they get their
6 work? How do they get their work assignments?
7 A. Lieutenants are usually given their assignments through
8 the CO book. They're -- or given assignments directly from
9 the watch commander, told that they're needed to do this, or
10 would they check on this. But never through anything like
11 this.
12 Q. Do Chicago police lieutenants, in your 25 years of
13 experience, have to organize and collate hundreds of pages of
14 materials to start their tour of duty?
15 A. No, they don't.
16 Q. What do they do when they get the CO book? What are the
17 responsibilities of a lieutenant once they get the orders in
18 the CO book?
19 A. The lieutenant will read through the book, he will make
20 the notifications, and he will probably make those people who
21 need to be alerted that there is something in the book that
22 concerns them that they need to be aware of, and probably sign
23 off as notifying those persons, and have those persons sign
24 the book as being notified.
25 Q. Do they have to organize the materials in the book?
233
Hardy - direct
1 A. No.
2 Q. Now, you said that you never saw anything like this
3 in-basket exercise on the job. Can you give the Court some
4 examples of what you mean by that?
5 A. Well, the way this was set up, I've never seen a
6 situation where -- and I've been assigned, as I said, as a
7 watch commander, I've been present when a watch commander has
8 arrived for his tour of duty when he has sat down as his desk,
9 and I've also had the opportunity to sit in the watch
10 commander's office when the watch commander has to leave out.
11 Our district commander has a policy that someone
12 will always be sitting in that seat with a white shirt. So
13 I've had an opportunity on a number of occasions to sit in
14 that seat and see exactly what comes across that desk, and in
15 all my years, I've never seen anything like this at all.
16 I've never seen a lieutenant have to go through a
17 hundred pages of material, I've never seen a lieutenant have
18 to put any of this material or anything that he needs to read
19 on the floor of his office, get down on his knees, and try to
20 prepare or put in order anything to be presented.
21 Q. I'd like you to look at a few particular questions on the
22 test again as examples.
23 THE COURT: I think we're going to do this after
24 lunch. Let's break for -- let's say 1:25. 1:25.
25 (Recess at 12:20 p.m.)
234
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 19, 1997
6 CITY OF CHICAGO, ) 1:30 p.m.
)
7 Defendant. )
8 VOLUME 2
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
235
Hardy - direct
1 (Proceedings heard in open court.)
2 THE COURT: Mr. Hardy, you're still under oath.
3 JUDGE HARDY, PLAINTIFF'S WITNESS, PREVIOUSLY SWORN
4 DIRECT EXAMINATION (Resumed)
5 BY MR. FUTTERMAN:
6 Q. All right, Sergeant Hardy, we were just about to look at
7 Defendant's Exhibit 15 again, the test, the in-basket test. I
8 was going to have you look at question No. 29, which is Bates
9 8439.
10 A. Question 29?
11 Q. Right. Tell me when you've found it.
12 A. So that we're on the same page, is this a complaint
13 registered investigation of Officer McKay?
14 Q. Correct.
15 A. Okay.
16 Q. Take a look at question No. 29 and tell me what you need to
17 do to answer that question correctly on the test.
18 A. I would need to go back and read all of the information
19 leading up to this question. I would have to go back through
20 all of the material, pull that material and, I guess, sort that
21 material to make the determination as to who this would be
22 assigned to.
23 Q. Is that the sort of thing that an actual Chicago police
24 lieutenant would have to do?
25 A. No.
236
Hardy - direct
1 Q. Why not? What would a Chicago police lieutenant have to
2 do?
3 A. If a CR number was to be assigned to an officer on your
4 watch, you would know based on --
5 Q. Could you speak up a little bit?
6 A. I'm sorry.
7 If a CR number was to be assigned to someone on your
8 watch, there is a log that you go through. And it's done in
9 sequence, meaning that each supervisor is given a CR number,
10 and the next one up would get the next CR number.
11 Q. Let's look at another question. How about question No. 30,
12 same page, 8439?
13 A. Again, I would have to read all of the material, go through
14 it to make the determination as to who should be assigned to
15 counsel Officer Towns.
16 Q. Would a Chicago police lieutenant have to do that in the
17 real world?
18 A. No, we wouldn't.
19 Q. Why not?
20 A. Because the supervisor and the sergeant who supervises
21 Officer Towns would be given that assignment, and I would know
22 who that supervisor is based on the schedule or the listing for
23 that day.
24 Q. You wouldn't have to go through a hundred pages of material
25 to figure that out?
237
Hardy - direct
1 A. No, I wouldn't.
2 Q. How about question 34, which is Bates 8440? To answer that
3 question, what would you have to do?
4 A. Again, I would have to read and go through all of the
5 information that was provided for this question to make the
6 determination as to who would be assigned.
7 Q. In the real world, how would the lieutenant make this
8 determination?
9 A. Well, first of all, in the real world, if it was determined
10 that a crime in fact had been committed, he would have an
11 officer, he would have an officer assigned to make a case
12 report.
13 And once the case report is initiated, it would go
14 through channels. Our criminal investigation or our detective
15 division would then be assigned to do the follow-up on this.
16 Q. So when you say an officer would be assigned in the first
17 instance, are you speaking of a patrol or a beat officer?
18 A. Yes, I am.
19 Q. Then when it goes through channels, who would approve the
20 patrol or beat officer's report?
21 A. The sergeant, his supervising sergeant.
22 Q. Would the lieutenant ever review that case report?
23 A. In all likelihood, no.
24 Q. Why not?
25 A. Unless there was some, some real significance that was
238
Hardy - direct
1 attached to this particular incident that he felt that he
2 needed to be involved in, in all likelihood, he wouldn't, he
3 wouldn't look at it.
4 Q. Is there a spot for the lieutenant to sign off on case
5 reports?
6 A. No, there isn't.
7 Q. How about for sergeants?
8 A. Yes.
9 Q. How about another question, question 48 page 8445. Are you
10 with me, Sergeant?
11 A. Yes, I am.
12 Q. Okay, same question: What would you have to do to answer
13 it, first on the test?
14 A. Again, I would have to go through the material. I would
15 have to determine what day-off group the officers were in and
16 what day-off group was off on this particular day and make that
17 decision based on going through all the material.
18 Q. Do Chicago police lieutenants do that kind of work?
19 A. No, they don't.
20 Q. Why not?
21 A. Well, we have a desk officer whose primary responsibility
22 is to make sure that these kinds of things are filled.
23 Q. Lieutenants don't do that?
24 A. No, we don't.
25 Q. What, if anything, would be a lieutenant's role after the
239
Hardy - direct
1 desk officer did it in the first instance?
2 A. The lieutenant's role is just to approve the report. I
3 mean, whatever the desk officer decided to do in this
4 particular incident, the signature would be required of the
5 watch commander. A lieutenant wouldn't even get involved. A
6 field lieutenant wouldn't be involved in this at all.
7 Q. Let's look at one more question, question 49, same page,
8 8445. Take a chance and review that one.
9 Same question: What would you need to do to answer
10 that question correctly on the test?
11 A. I would have to go through all of the papers, sort those
12 papers to determine the day-off groups, and I'd have to
13 determine based on seniority who had the least amount of
14 seniority in order to make this decision.
15 Q. Do Chicago police lieutenants do this kind of work in real
16 life?
17 A. Not really. The field lieutenant, no.
18 Q. How about the police lieutenants who are watch commanders?
19 A. The watch commander would not do this. But the watch
20 commander could get involved in this. But this would not
21 normally be his function or his duty.
22 Q. Whose duty is it?
23 A. The desk clerk, or the desk officer, if you want to refer
24 to him as that.
25 Q. So if at any time a watch commander would be involved, it
240
Hardy - direct
1 wouldn't be in doing the actual scheduling, would it?
2 A. No.
3 Q. It would only be in approving something that was already
4 done?
5 A. Correct.
6 Q. I'd like to direct your attention to a couple of pages of
7 the written materials and the tests. I'm going to hand them up
8 to you, first what's Bates stamped as 8462, same exhibit.
9 Is what's Bates stamped 8462, the document in front
10 of you, is that the type of document you would see as a
11 lieutenant on the job?
12 A. I've never seen anything like this.
13 Q. What is it or what does it appear to be?
14 A. It appears to be a work assignment.
15 Q. How do -- is there anything like it that a police
16 lieutenant, Chicago police lieutenant might see or anything
17 that would cover that issue?
18 A. In all my years, I've never seen anything like this.
19 Q. Let me move to the next consecutive page on the test, 8463.
20 Take a look at that.
21 Is that something that a Chicago police lieutenant
22 would see on the job in that form?
23 A. This looks like a personnel roster. And a lieutenant might
24 see a personnel roster.
25 Q. Do Chicago police departments have personnel rosters in
241
Hardy - direct
1 that form?
2 A. No.
3 Q. What do they use?
4 A. They use -- if we're talking about particular watches?
5 Q. Uh-huh.
6 A. Or are we talking about assigned to a district or the unit
7 itself?
8 Q. Start with a particular watch. Would that be an attendance
9 and assignment sheet?
10 A. No.
11 Q. What would it be?
12 A. Could you repeat the question? I'm sorry.
13 Q. I'm sorry.
14 You said that first a roster for a particular watch.
15 What form would that be on the Chicago police department?
16 A. Well, it would be in the form of who is assigned to what
17 car. And usually they have -- they'll have also the assigned
18 lunch times. The beats and the assigned lunch times are
19 usually listed on the day-to-day rosters.
20 Q. Do you know what those day-to-day rosters are called?
21 A. We just call them the "sheets." How do I appear on the
22 sheet for this particular day?
23 Q. Did it look anything like what you see in front of you?
24 A. No.
25 Q. Now, you referred to another sort of roster. It slips my
242
Hardy - direct
1 mind. You said there was another kind of personnel roster?
2 A. The A&A sheets?
3 Q. Yes.
4 Does that look anything like an A&A sheet?
5 A. Nothing.
6 Q. Does it look like anything that a lieutenant normally sees
7 on the job in the Chicago Police Department?
8 A. Not in any of the years that I've been associated with the
9 Chicago Police Department.
10 Q. Okay. Let's look at the next consecutive sheet of
11 materials, 8464.
12 The same question: Is that the type of material that
13 you would see as a police lieutenant on the job in the Chicago
14 Police Department?
15 A. Somewhat, it's somewhat similar to it.
16 Q. What is it?
17 A. This is the sector assignments for the second watch. And
18 it lists the officers and the supervising sergeant for the two
19 sectors --
20 Q. Is that --
21 A. -- or the three sectors.
22 Q. I'm sorry.
23 Is that in the same form that you would see something
24 like that on the Chicago Police Department?
25 A. Not quite, no.
243
Hardy - direct
1 Q. Let me give you another -- two pages later, 8466. Is that
2 something you would see as a Chicago police lieutenant?
3 A. No.
4 Q. What is it?
5 A. This is a weapons -- this is Lieutenant Robert Joseph's
6 notes. And it's in regards to a weapons discharge
7 investigation.
8 Q. Would you see another lieutenant's notes with regard to a
9 weapons discharge investigation?
10 A. No, no, you would not.
11 Q. Why not?
12 A. Usually these investigations are kind of held by the
13 lieutenant and are not privy for anybody to take a look at.
14 Q. Let me show you just one more sheet, the next consecutive
15 sheet just by way of example, 8467, and I'll move on.
16 Does that sheet -- is that sheet in the same form of
17 written material that you would see as a Chicago police
18 lieutenant?
19 A. You might see this report.
20 Q. And what is it?
21 A. This is a to/from/subject from one of the officers that --
22 who witnessed the weapons discharge of Officer Essex.
23 Q. In Chicago Police Department to/from reports written by
24 other officers, do the officers refer to themselves by "I" or
25 "me" as it is in that report? Is that standard Chicago Police
244
Hardy - direct
1 Department lingo, so to speak? Is that the form in which you
2 would see things?
3 A. Not really, no.
4 Q. What would you see?
5 A. The reporting officer, meaning himself, when he refers to
6 himself, he would go "reporting officer" or "RO."
7 Q. In summary -- let me have those materials.
8 The majority of materials that you had to review to
9 answer those questions, were they like the materials that a
10 lieutenant sees on a day-to-day basis?
11 A. I would say no.
12 Q. You mentioned a little bit earlier or near the beginning of
13 your testimony that you had to put the materials on the floor
14 to take the test?
15 A. Yes.
16 Q. Do watch commanders ever have to work on the floor?
17 A. In my 27 years, I've never seen a watch commander on his
18 hands and knees working on the floor.
19 Q. Do you believe that having to work on the floor with the
20 materials spread out over the floor raised any security
21 concerns about the test?
22 A. A great number. In the classroom that I was in, I observed
23 some things that I thought were a little unusual.
24 Q. Can you explain?
25 A. Well, I didn't realize at the time exactly what was going
245
Hardy - direct
1 on, because I was basically concentrating on what was going on
2 in my area in terms of what was happening on my desk, in and
3 around my area.
4 But I observed, and I made mention of it, that there
5 were three guys who seemed to be working in harmony together.
6 I mean, they seemed to be doing something that all three seemed
7 to be a part of. And I witnessed one of them exchange papers
8 with the other one, not paper but booklet, because we were
9 setting things on the floor, I saw his booklet on the floor,
10 and I thought that he had accidentally kicked his booklet. But
11 what actually happened was the guy in front of him picked up
12 his booklet, and he put his booklet on the floor, and so they
13 actually exchanged booklets.
14 Q. Do you believe the conditions under which you took the test
15 allowed for opportunities to cheat?
16 A. Very much so.
17 Q. Now, you said you were allotted a particular amount of time
18 to complete the multiple-choice questions?
19 A. That's correct.
20 Q. Do you believe those time constraints affected how well you
21 did on the test?
22 A. I think so.
23 Q. Did you run out of time when you took the test?
24 A. I sure did.
25 Q. Now, the other day you had an opportunity to see what
246
Hardy - direct
1 questions you got wrong on the test, is that right?
2 A. Yes.
3 Q. Did you get a lot of the last 10 or 15 or so questions
4 wrong?
5 A. I sure did.
6 Q. Why?
7 A. Basically guessed at them when they told us it was time to
8 put the pencils down. I basically guessed the last, you know,
9 last 10 or 15 questions.
10 Q. Now, you also from co-counsel have had an opportunity to
11 take in-basket tests home with you?
12 A. Yes.
13 Q. What did you do with the in-basket test?
14 A. Well, what I did is I sat down, I read all the material.
15 Because I have a big desk at home, I was able to sort and
16 separate the material. And I then took the test.
17 Q. When you took the test, were you able to answer all the
18 questions correctly?
19 A. Yes, I was.
20 Q. Now, I believe opposing counsel asked another witness this
21 similar question, but were all the materials that you needed to
22 answer the questions there before you?
23 A. Was all of the --
24 Q. Were the materials you needed to answer the questions
25 correctly provided for you?
247
Hardy - cross
1 A. Yes, I would say so.
2 Q. Do Chicago police lieutenants regularly take reading
3 comprehension tests as a part of their job?
4 A. No.
5 MR. FUTTERMAN: Just two more questions.
6 BY MR. FUTTERMAN:
7 Q. When you took the test at home and you said you answered --
8 you were able to answer them all correctly, how long did it
9 take you to take the test?
10 A. I would say close to three hours. It may have been a
11 little longer, maybe a little shorter, but close to three
12 hours.
13 Q. And this was about three years after you took the test
14 before?
15 A. Yes.
16 Q. Have you been promoted to rank of lieutenant as a result of
17 that '94 promotional exam?
18 A. No, I have not.
19 MR. FUTTERMAN: I don't have anything further.
20 CROSS-EXAMINATION
21 BY MR. PIELL:
22 Q. Good afternoon, Sergeant.
23 A. Good afternoon.
24 Q. I believe you testified that you served as a watch
25 commander in the public housing unit, is that correct?
248
Hardy - cross
1 A. That's correct.
2 Q. That unit is not in the patrol division, correct?
3 A. That is correct.
4 Q. This is the unit that's responsible for the public housing
5 complexes in the city, correct?
6 A. This is correct.
7 Q. And you're actually officed in one of the high-rise public
8 housing buildings, correct?
9 A. Yes.
10 Q. This is the only unit or division in which you have served
11 as a watch commander, correct?
12 A. Correct.
13 Q. As a watch commander, there is a variety of different types
14 of paperwork for which you're responsible, correct?
15 A. Yes.
16 Q. For example, when you were watch commander, you were
17 responsible for reviewing supervisor logs, correct?
18 A. Yes.
19 Q. And you reviewed those logs for accuracy, correct?
20 A. Correct.
21 Q. And when you reviewed them for accuracy, you had to know
22 what information needed to be included or not included to make
23 sure they were accurate, correct?
24 A. That's correct.
25 Q. And as watch commander, you were responsible for reviewing
249
Hardy - cross
1 requests for requirements for overtime, correct?
2 A. Yes.
3 Q. As a watch commander, you reviewed time-due slips, correct?
4 A. Correct.
5 Q. As a watch commander, you reviewed activity reports,
6 correct?
7 A. Correct.
8 Q. As a watch commander, you reviewed information reports,
9 correct?
10 A. I guess you could say that.
11 Q. As a watch commander, you reviewed case reports submitted
12 by officers on your shift, correct?
13 A. Because the watch commander in public housing is a
14 sergeant, and we don't have a lieutenant per se, then you would
15 review the case reports that were left, say previous watches or
16 by patrolmen whose sergeants that they were assigned to didn't
17 have the opportunity or didn't sign those reports. You just
18 went on and signed those reports to see that those reports went
19 forward.
20 Q. You also reviewed arrest reports as a watch commander?
21 A. Yes.
22 Q. As a watch commander you had responsibilities with respect
23 to summary and punishment action requests?
24 A. Yes.
25 Q. With respect to the case reports you reviewed as a watch
250
Hardy - cross
1 commander, you reviewed those reports for accuracy, legibility
2 and form, correct?
3 A. Yes.
4 Q. And you reviewed those case reports to make sure that the
5 necessary notifications and other information was listed,
6 correct?
7 A. That is correct.
8 Q. So you had to know what the necessary notifications were
9 and the necessary information were when you reviewed those
10 reports, correct?
11 A. Yes, that is correct.
12 Q. There is a general order that spells out what should be in
13 a case report, correct?
14 A. I believe so.
15 Q. I believe you told me at deposition you did not have to
16 refer to the general order each time you reviewed a report to
17 make sure that the report was in compliance with the general
18 order, correct?
19 A. That is correct.
20 Q. And you didn't have to refer to the general order, because
21 you knew the information that was required by the general
22 order, correct?
23 A. Correct.
24 Q. And that knowledge of the general order required in the
25 case reports helped you to be more efficient in your job as a
251
Hardy - cross
1 watch commander, correct?
2 A. Yes.
3 Q. With respect to the arrest reports you viewed as a watch
4 commander, you reviewed those reports to make sure that those
5 reports established the reason for arrest and the correct
6 charges, correct?
7 A. Among other things, yes.
8 Q. And you reviewed those arrest reports to make sure there
9 was a probable cause for the arrest, correct?
10 A. That was one of the things also that I checked for.
11 Q. You're familiar with the concept of probable cause?
12 A. I am.
13 Q. And because you're familiar with it, you don't need to look
14 it up every time an arrest report comes across your desk,
15 correct?
16 A. In most instances.
17 Q. And this knowledge enabled you to be more efficient in your
18 job as a watch commander, correct?
19 A. Yes.
20 Q. As a watch commander, you were responsible for working on
21 manpower issues on your shift, correct?
22 A. To a degree.
23 Q. And manpower issues were an important part of the watch
24 commander job, correct?
25 A. I'm sorry, what was that?
252
Hardy - cross
1 Q. Manpower issues are an important part of the watch
2 commander job that you performed, correct?
3 A. Yes.
4 Q. As a watch commander, you investigated or directed
5 investigations where a policeman was shot at, correct?
6 A. I have, yes.
7 Q. And you've also investigated or directed investigations
8 where a policeman shot at someone who was not a policeman,
9 correct?
10 A. That is correct.
11 Q. And as a watch commander you also investigated or directed
12 investigations regarding complaints by citizens against members
13 of the Chicago Police Department, correct?
14 A. That is correct.
15 Q. I believe you testified on direct about your studies for
16 the in-basket component of the exam and the other parts of the
17 exam. When you studied for the exam, you also studied the
18 duties of the desk sergeant, correct?
19 A. Yes.
20 Q. And you consider it important for a lieutenant to know the
21 duties and responsibilities of the desk sergeant, correct?
22 A. Yes.
23 Q. When you studied for the exam, you also studied the duties
24 of the lockup keeper, correct?
25 A. Yes.
253
Hardy - cross
1 Q. And you consider it important for a lieutenant to know the
2 duties and responsibilities of the lockup keeper, correct?
3 A. I think that he should know the responsibilities and the
4 duties of both the lockup and the desk to a certain degree.
5 I think that any other information that he has
6 questions about, the orders are always available for him to
7 check.
8 Q. When you studied for the exam, you also studied the duties
9 of the watch commander, correct?
10 A. That's correct.
11 Q. And you consider it important for a lieutenant to know the
12 duties and responsibilities of the watch commander, correct?
13 A. I do.
14 Q. You testified earlier about the conditions under which you
15 took the in-basket exam. I asked you, the other people who
16 were in the room with you when you took the in-basket
17 component, they had the same size desk as you, correct?
18 A. Yes.
19 Q. Those people also spread their papers out on the floor, I
20 believe you testified, correct?
21 A. Yes.
22 Q. The people giving you the exam didn't tell you you had to
23 use the floor, correct? Yes or no?
24 A. Well, as part of their -- as part of their instructions
25 pretest as to how you were to conduct yourself, they told you
254
Hardy - cross
1 that if you felt necessary -- if you felt it necessary to use
2 the floor, please do so.
3 Q. So they afforded you the opportunity to use the floor,
4 correct?
5 A. Yes.
6 Q. You testified a little bit on direct about scheduling
7 responsibilities and duties. You agree that as a watch
8 commander the lieutenant would review the scheduling sheets
9 prepared by the desk sergeant, isn't that right?
10 A. To a degree, yes.
11 Q. And you would agree that the watch commander is responsible
12 for making sure that the information contained in those
13 schedule sheets or reports is accurate, correct?
14 A. Yes.
15 Q. They wouldn't sign off on those reports if they weren't
16 accurate, correct?
17 A. Well --
18 Q. Or they shouldn't?
19 A. They shouldn't.
20 Q. Thank you.
21 A. And I don't know if that's what they're looking for as
22 more -- they're looking for the numbers. If they're looking to
23 see that every car is manned, and I think that that's basically
24 what they're looking for, to determine if the manpower
25 necessary to carry out the watch is fulfilled, if they have the
255
Hardy - cross
1 correct number of people.
2 Q. So if --
3 A. And the correct number of cars manned.
4 Q. I'm sorry.
5 If the correct number of cars to be manned or the
6 manpower needs of the shift are not filled on those reports,
7 the watch commander takes some action in that respect, correct?
8 A. Yes.
9 Q. A watch commander would review the scheduling sheets to
10 make sure that they are in compliance with the FOP contract,
11 correct?
12 A. I would think that once the sheets come across the watch
13 commander's desk that the watch commander would assume that the
14 desk person who put these sheets together put these sheets
15 together with the contract in mind or in consideration before
16 filling these cars or filling the necessary spots that had to
17 be filled. I think this is what he would rely on this officer
18 to do.
19 Q. In the event that the desk sergeant does not accurately
20 prepare these reports in compliance with the FOP contract,
21 isn't that something that the watch commander should catch,
22 find and correct?
23 A. That's -- I want, I want to answer your question most
24 correctly as I can.
25 But I think that that would, that would be something
256
Hardy - cross
1 that may not come to his attention. It may come to the
2 attention of the desk officer or the desk sergeant, because if
3 there was a discrepancy, or if an officer found that there was
4 something wrong with the sheets, that he felt he should have
5 been off or whatever, he wouldn't address the watch commander
6 first off. He would go to the desk officer. He would make his
7 objections or his problem known to the desk officer.
8 And if the desk officer realized there had been -- a
9 mistake had been made, he would do it before the watch
10 commander would see it and then just make the necessary
11 adjustments and make the watch commander aware that I had to
12 adjust this.
13 Q. The watch commander supervises the desk sergeant, correct?
14 A. This is correct.
15 Q. And it's his responsibility or her responsibility to make
16 sure that the desk sergeant does their job correctly, correct?
17 A. In the overall sense, yes.
18 Q. The other individuals who took the in-basket component of
19 the examine in the same room as you, they had the same exact
20 amount of time to take that exam as you, correct?
21 A. Yes.
22 Q. The package of materials that were provided to you in the
23 in-basket exam were not provided to you in a basket, were they?
24 A. No, they were not.
25 Q. You received a bunch, a stack of papers?
257
Hardy - cross
1 A. That is correct.
2 Q. So "in-basket" was a title for the component, correct?
3 A. Right.
4 Q. You testified earlier that as a watch commander you
5 received documents and other papers through the CO book. Do
6 you remember that testimony?
7 A. I said that we are -- as a watch commander, what's
8 happening is that most notifications or anything that you need
9 to be made aware of, in most cases, you're made aware of
10 through the CO book.
11 Q. In addition to the CO book, though, you also receive
12 reports like arrest reports or case reports from some other
13 source, correct?
14 A. Yes.
15 Q. They don't come in through the CO book?
16 A. No, they don't.
17 Q. If you recall, the in-basket exercise required you to
18 review arrest reports for accuracy and completeness, correct?
19 A. Correct.
20 Q. That's something you do as a watch commander, right?
21 A. Yes.
22 Q. The in-basket exercise required you to review documents
23 regarding the weapons discharge incident, correct?
24 A. This is correct.
25 Q. And that's something you do as a watch commander, correct?
258
Hardy - cross
1 A. If you were the watch commander that was assigned the
2 shooting, yes.
3 Q. Okay. The in-basket exercise required you to review
4 documents regarding complaint register investigations, correct?
5 A. Correct.
6 Q. And that's something that you would do as a watch commander
7 if you were assigned to that investigation, correct?
8 A. Correct.
9 Q. The in-basket exercise required you to review documents
10 regarding summary punishment investigations, correct?
11 A. Correct.
12 Q. And that's something that you would do as a watch commander
13 if you were assigned to those investigations, correct?
14 A. You know, you're correct in what you are asking me. But I
15 think that it wasn't presented in that way, or it wasn't
16 presented in the way that you are trying to make me or trying
17 to make this Court see it.
18 It was presented in a way that was contrary or not
19 the way that this police department presents that information
20 to a watch commander.
21 Q. Thank you.
22 You testified on direct that you had an opportunity
23 to take the in-basket component again, correct?
24 A. Yes.
25 Q. And you said it took you approximately three hours to
259
Hardy - cross
1 complete the exam?
2 A. Yes.
3 Q. And, again, you saw all these materials before when you
4 took the exam in 1994, correct?
5 A. Yes.
6 Q. And you saw all 60 questions which you answered recently,
7 three years ago you saw those same questions, correct?
8 A. I did.
9 Q. Direct your attention to back to Defendant's Exhibit 15 and
10 it's Bates number 8462. Do you have those papers in front of
11 you?
12 A. I don't think it's 8462. They're not numbered. I've just
13 got 8425 is the top page, and after that --
14 MR. PIELL: May I approach?
15 MR. HOLZHAUER: I think they all have -- they don't
16 have numbers, do they?
17 THE WITNESS: No. Maybe if you give me a question
18 number.
19 MR. PIELL: Well, unfortunately, it's not marked.
20 What pages were you having to --
21 MR. FLAXMAN: He had an unnumbered set.
22 THE COURT: You handed him this page.
23 MR. FUTTERMAN: We took this one book.
24 THE COURT: Well, then give it back to him.
25 MR. PIELL: 8462, 63, 64.
260
Hardy - cross
1 BY MR. PIELL:
2 Q. Sergeant, here are Bates documents 8462, 8463, and 8464. I
3 believe your testimony earlier was that you received these
4 materials as part of the in-basket component, is that correct?
5 A. That is correct.
6 Q. And you received -- look first at page 8462. When you
7 received that document as part of the package, did you read
8 through that material?
9 A. I did.
10 Q. You could understand what was written on that page,
11 couldn't you?
12 A. Yes, I could understand what was written on the page. I
13 could --
14 Q. That answered my question. Thank you.
15 Could you look at the next page, 8463. When you
16 received this page as part of the in-basket exam, did you read
17 that page?
18 A. Yes, I did.
19 Q. And did you understand the information that was provided on
20 this page?
21 A. It was somewhat confusing, but I did understand it.
22 Q. Well, tell me what is confusing about it? Look at, for
23 example, the heading that says, "Watch operations, lieutenant,
24 29th district patrol division, second watch, Terry Graham."
25 What part of that didn't you understand, Sergeant?
261
Hardy - cross
1 MR. FLAXMAN: Objection.
2 BY MR. PIELL:
3 Q. Sergeant?
4 THE COURT: Are you objecting or aren't you
5 objecting?
6 MR. FLAXMAN: I would like my co-counsel to object,
7 because he did say he didn't understand that part of the
8 question. Come on.
9 MR. PIELL: I would object to that objection.
10 THE COURT: All right. I'll take the objection. He
11 said he wasn't clear.
12 Gentlemen, please, please. Just let's keep this
13 civil. All right?
14 He said he didn't -- he said it wasn't easily
15 understood. Now you're asking him -- why don't you ask him the
16 question that you started to ask him; that is: What don't you
17 understand about it?
18 You know, there is no jury here. Let's keep the
19 oratory down. Just let's get this case presented to me so that
20 I can decide it. We don't have to do all the flourishes.
21 What don't you understand about it?
22 THE WITNESS: Well, it's just not the way that we
23 would normally do it with the police department. This is not
24 how we would normally see our rosters or our daily sheets for
25 the day.
262
Hardy - cross
1 And so in saying that, it's just a little more
2 confusing. When I see an officer's name, I'm usually looking
3 at an officer's name assigned to a beat. I'm usually looking
4 at officers assigned to a particular assignment.
5 BY MR. PIELL:
6 Q. When you read this document, when you were taking your
7 in-basket exam, you understood who was the watch operations
8 lieutenant assigned to the second watch in the 29th district
9 patrol division, didn't you?
10 A. Yes.
11 Q. And you understood who the field operations lieutenants
12 were assigned to that district and that watch?
13 A. Yes.
14 Q. You also understood who the officers assigned to the 29th
15 district, patrol division, second watch were?
16 A. Yes.
17 Q. And you understood when it has information regarding star
18 numbers what that refers to?
19 A. Yes.
20 Q. Could you just tell us what a star number is?
21 A. A star number is a particular officer's badge number, if
22 you want to refer to it as that. It's what we -- one of the
23 ways that we identify particular officers or individual
24 officers?
25 MR. PIELL: Thank you very much, Sergeant. That's
263
Hardy - redirect
1 all I have.
2 MR. FLAXMAN: May I have a minute?
3 (Discussion off the record.)
4 REDIRECT EXAMINATION
5 BY MR. FUTTERMAN:
6 Q. Sergeant, on cross-examination you were just asked a number
7 of questions about as a watch commander you generally do look
8 at spot forms, you look at CR investigations, and you said it
9 comes across to a Chicago police lieutenant in a different way
10 than it did on this test. What do you mean by that?
11 MR. PIELL: Objection. That mischaracterizes his
12 testimony.
13 THE COURT: I know what he's asking. Go ahead.
14 BY THE WITNESS:
15 A. Okay.
16 BY MR. FUTTERMAN:
17 Q. How is it different?
18 A. To give you an example, looking at 462, okay.
19 Q. You have it, right?
20 A. The weapon, it's a to/from work assignment. A district
21 commander would not in my experience leave a report for another
22 lieutenant to complete another lieutenant's weapons discharge.
23 In my experience in 25 years, I've only seen one case
24 where a lieutenant did not complete a shooting investigation or
25 try to or attempted to turn that investigation over to another
264
1 lieutenant. And that lieutenant that he tried to turn that
2 investigation over to, believe me, let him know in no uncertain
3 terms that he was not about to throw that or dump that off on
4 him. And he made every other lieutenant in the district aware
5 that this guy just tried to, you know, Lujack me or Lujack this
6 job on to me. That's not happening.
7 So that's just one of the things that -- it just
8 doesn't happen on the police department. We do weapons charge
9 investigations. Once we start an investigation, it's our ball
10 to handle, okay.
11 As I looked through this, there were a number of
12 things that in theory maybe, maybe police, but not done the way
13 we do it here in Chicago and on this police department, which
14 made it somewhat confusing. That was the point that I was
15 trying to make.
16 MR. FUTTERMAN: That's all, Your Honor. Thank you.
17 Thank you, Sergeant.
18 MR. PIELL: Nothing further.
19 THE COURT: I have a couple of questions.
20 What you are saying is not that the subject matter is
21 foreign to the job of a lieutenant, but the way it was
22 presented to you was different than the way it was being
23 presented to the lieutenant in Chicago? Is that what you are
24 saying?
25 THE WITNESS: I'm saying that we have a working way
265
1 of doing things. And the way -- the way that this was
2 presented was not in the working way that we're accustomed to
3 doing things here in Chicago.
4 In fact, if it would be presented to a lieutenant
5 like that, the lieutenant would be probably so upset that it
6 was brought to him like that that he may, you know, I know he'd
7 storm into the district commander's office and let him know
8 that I'm not accepting this, because I don't know what happened
9 before this, and I'm not going to let him dump this on me.
10 So as we go through this exam, some of the things
11 that they ask about are actually police things, but it is not
12 done or not carried out the way we do it here in Chicago, which
13 kind of put us -- which kind of put me in an awkward position,
14 kind of imbalanced. Do I do it like we normally do it or do I
15 do it like they say do it, which is not the way we normally do
16 it, which is kind of, you know --
17 THE COURT: But when you sat down to answer the
18 questions after you went through all this material, it took two
19 and a half hours, and you read through all this, right?
20 THE WITNESS: Uh-huh.
21 THE COURT: And you organized it the best you could,
22 right?
23 THE WITNESS: Right.
24 THE COURT: When you went down -- when you sat down
25 to answer the questions, did you have trouble with answering
266
1 the questions because of what you just told me?
2 THE WITNESS: I had trouble with answering the
3 questions because they were not presented like we would present
4 a situation in Chicago. And so it made it difficult for me to
5 answer --
6 THE COURT: Can you give me some examples? Let's go
7 to some of the questions that Mr. -- I'm sorry --
8 MR. FUTTERMAN: Futterman.
9 THE COURT: -- Futterman asked you about. Let's go
10 to 29, the first one on page 8439. Do you have that in front
11 of you?
12 THE WITNESS: No, I don't.
13 THE COURT: Will you give it to him, please.
14 MR. FUTTERMAN: Sure.
15 THE COURT: I just want to understand how this
16 translated into your test taking.
17 THE WITNESS: Okay. Which question is that?
18 THE COURT: 29 is the first one that Mr. Futterman
19 asked you about.
20 THE WITNESS: Complaint alleged investigation of
21 Officer McKay should be assigned to.
22 THE COURT: Okay. Now, when he asked you about that,
23 you said, well, I had to go back and find all this stuff to see
24 who was the proper person to assign it, and then you said this
25 isn't the way that a lieutenant would do it, because I have a
267
1 sergeant who would do this or something like that, right?
2 THE WITNESS: Okay, right.
3 THE COURT: But what I want to know is: When you
4 went to answer the question, regardless of the fact that this
5 isn't the way, you know, this isn't the function that the
6 lieutenant might perform, what was it about this question that
7 you had trouble answering because it wasn't the way a
8 lieutenant -- or it wasn't something expected of a lieutenant
9 in Chicago?
10 THE WITNESS: Well, I didn't think the way they asked
11 the question or the way the question was presented and how they
12 presented the scenario, I didn't think that -- I found that
13 difficult to answer this question the way -- based on my
14 experience, because I thought that this was supposed to have
15 been a test that was job-related and that you were supposed to
16 use this material but also use what you do as a lieutenant or a
17 watch commander to help you make the decision as to which was
18 the most correct way to go in this.
19 THE COURT: Well, what were the factors that went
20 through your mind when you looked at this question?
21 THE WITNESS: The first thing that I said is that I
22 would know, first of all, as the lieutenant or the watch
23 commander who would be assigned this next investigation,
24 because there is a roster of how many sergeants that we have
25 and who got the last CR number. So the next CR number would
268
1 logically go to number, say, number four if number three got
2 the last one.
3 So we would not -- we would not use, unless this
4 officer worked for that particular sergeant, say if it's a
5 tactical officer and he worked for the tac team, he was on the
6 tac team, then this would go to the tac sergeant, okay. It
7 would not come through the regular watch. It would go to the
8 tac sergeant. So now if I'm using that and I'm looking at
9 this, it's somewhat confusing. We wouldn't do it like this.
10 THE COURT: All right. Let's go to number 30. What
11 factors went into your decision about that?
12 THE WITNESS: Again, if a patrolman is assigned to a
13 sergeant or a sergeant is assigned an investigation to do on a
14 patrolman for less serious transgressions or whatever, that
15 sergeant would then also have a responsibility to do the
16 counseling. Or if the sergeant recognizes a flaw and he felt
17 that perhaps a counseling session was necessary, as opposed to,
18 you know, somewhat more severe punishment, then he would
19 initiate that. And he would just simply make the watch
20 commander aware that this guy has been late a couple of times
21 or this guy is this and I counseled him on it. It wouldn't be
22 a thing where you would make a decision as to who would be
23 selected to do the counseling.
24 THE COURT: I see. So the question is just something
25 that would be foreign to you?
269
1 THE WITNESS: Right.
2 THE COURT: I understand. All right.
3 The last question I have. What is the CO book? Tell
4 me, describe it to me physically and then tell me what's in it.
5 THE WITNESS: A CO book is a journal. It's a book
6 about this big. And what --
7 THE COURT: About 18 inches?
8 THE WITNESS: Right.
9 THE COURT: 12, 18 inches.
10 THE WITNESS: Right. And it's about this wide. It's
11 almost like a legal pad. It's just a little bit bigger than a
12 legal pad.
13 THE COURT: Okay.
14 THE WITNESS: And what goes in there is that
15 information is received from all over the city or basically
16 from operations command. They notify the districts that
17 certain things are going to take place, perhaps in their
18 district or throughout the city.
19 Say, to give you an example, the Taste of Chicago is
20 going to run through the 1st of June through the 9th of June.
21 The 4th District will assign the tac teams on the second watch
22 on this particular date, and on this particular date, they will
23 assign the rapid response team. Each time will consist of
24 eight people, okay.
25 And the desk -- not the desk, but the district
270
Hardy - redirect
1 commander's office will then determine what eight people or
2 what tac teams will be assigned. That will be posted in the
3 book. Now, if they run short and they need some extra people,
4 then they will put those names in the book.
5 So as the lieutenant, you will walk into the roll
6 call, and you'll make the notification: The following people
7 have been assigned to the Taste of Chicago for these following
8 dates. Officer so and so and officer so and so, you will be
9 acting relief on the tac team for those particular days.
10 You'll notify them, you'll sign the book as them being
11 notified.
12 Street closures, bridges down, those kinds of things
13 are in the CO book. And that information is disseminated to
14 the roll call so that all the officers are aware that this is
15 what is going on at this particular place.
16 THE COURT: And that's something that the lieutenant
17 does?
18 THE WITNESS: The watch commander does and the
19 lieutenant does at roll call.
20 THE COURT: All right. I understand. Thank you.
21 Any follow-up questions based on what I just asked?
22 MR. FUTTERMAN: Just one or two.
23 REDIRECT EXAMINATION
24 BY MR. FUTTERMAN:
25 Q. With the CO book that you were just talking about, does the
271
Hardy - redirect
1 lieutenant or the watch commander have to organize materials or
2 does the lieutenant simply just read them?
3 A. The lieutenant just simply reads that material. It's
4 already posted. All he does, it's listed there, it will be
5 read at roll call for the next three days or the next five
6 days. There's an order that states, you know -- it's even
7 broken down to watches.
8 It will tell you, for the attention of the second
9 watch, attention of the third watch, so that a lieutenant on
10 the midnights wouldn't necessarily have to read this particular
11 information for his group, because it only applies to the
12 people on a particular watch.
13 Q. Where does the information in the CO book come from within
14 the chain of command?
15 A. The information comes from the district commander's office.
16 Everything that's put in the CO book comes via the district
17 commander.
18 Q. And it's the lieutenant's job to be sure that what the
19 district commander orders is then enforced on his or her?
20 A. Enforced and implemented on each and every watch.
21 THE COURT: Okay, thank you.
22 Anything?
23 MR. PIELL: No.
24 THE COURT: All right, Sergeant. Thanks a lot.
25 You're excused.
272
Joyce - direct
1 THE WITNESS: Thank you.
2 (Witness excused.)
3 MR. FLAXMAN: We have no additional live witnesses in
4 this part of our case. We have stipulations and prior
5 testimony and exhibits. We could deal with that now or we
6 could deal with live witnesses on the defendant's side.
7 THE COURT: Well, if you have live witnesses, let's
8 deal with them now.
9 MR. HOLZHAUER: We have live witnesses.
10 THE COURT: Good.
11 MR. HOLZHAUER: I call Robert Joyce.
12 (Witness duly sworn.)
13 ROBERT JOYCE, DEFENDANT'S WITNESS, SWORN
14 DIRECT EXAMINATION
15 BY MR. HOLZHAUER:
16 Q. Mr. Joyce, would you state your name and spell your last
17 name for the record, please.
18 A. Robert T. Joyce, J-o-y-c-e.
19 Q. And I'd like to review your employment history. What
20 position do you hold now?
21 A. I'm presently deputy commissioner in the department of
22 personnel for the City of Chicago.
23 Q. Now, by deputy commissioner of the department of personnel,
24 are you referring to the entire city government or the police
25 department?
273
Joyce - direct
1 A. Yes, we are the central personnel agency that covers 46
2 departments and commissions, including the police department.
3 Q. But not just the police department?
4 A. That's correct.
5 Q. What are your responsibilities as deputy commissioner?
6 A. I head up the employment services division, which is
7 responsible for the intake of applications and resumes, the
8 evaluation of qualifications of candidates, the development --
9 or conducting job analyses, developing examinations, scoring
10 examinations, administering examinations, of course,
11 maintaining eligible lists of those who have been found
12 qualified, and keeping records in terms of those persons who
13 are referred for hire or for promotion.
14 Q. When did you become deputy commissioner?
15 A. 1981.
16 Q. Did you hold any positions in the department of personnel
17 before then?
18 A. Yes. I've been in the department of personnel and its
19 predecessor agency since 1970.
20 Q. And what jobs did you hold?
21 A. In 1970, I began as a personnel analyst, which was an
22 entry-level professional position.
23 Q. What did you do in that job?
24 A. My whole career with the department of personnel has been
25 in the area of employment services, examination, development
274
Joyce - direct
1 and test administration.
2 Q. So you were developing, administering and giving exams from
3 the beginning?
4 A. That's correct.
5 Q. And what job did you hold after that?
6 A. I believe my next title was senior personnel analyst.
7 Q. And when did you get that job?
8 A. Approximately 1971 or '72.
9 Q. And after that?
10 A. Prinicpal personnel analyst.
11 Q. After that?
12 A. Assistant supervisor of examinations.
13 Q. And next?
14 A. Manager of examinations.
15 Q. And next?
16 A. Then I became deputy commissioner.
17 Q. Thank you.
18 Now, as deputy commissioner and in your previous
19 jobs, you testified that you had extensive responsibility
20 regarding police promotion exams?
21 A. Yes, I have.
22 Q. Okay. Have you been involved in any tests for promotion to
23 lieutenant?
24 A. Yes.
25 Q. Which ones?
275
Joyce - direct
1 A. Well, the earliest one that I have a fairly strong
2 recollection of was the 1977 police lieutenant examination.
3 Q. And after that?
4 A. There was another one in 1987.
5 Q. And then?
6 A. Then another one in 1994.
7 Q. Let's start with the '77 test. What was your role in the
8 1977 test?
9 A. Well, I was the group leader or project leader for the
10 development of the examination and the administration of the
11 examination. I was the responsible person in the department of
12 personnel for that project.
13 Q. Did you write exam questions?
14 A. I probably did. I did have several people working for me
15 and with me who were more involved in the job analysis and item
16 writing.
17 Q. Do you recall what that test consisted of?
18 A. There were three parts: A traditional written
19 multiple-choice exam that is scored by a scanner or computer,
20 an oral examination, and a portion that was called a
21 performance evaluation that was based on the departmental -- an
22 evaluation of the individual's performance on the department on
23 the next lower rank, which was sergeant in this case.
24 Q. Did the 1977 test have an adverse impact on minority
25 candidates?
276
Joyce - direct
1 A. Yes, it did.
2 Q. Was the test the subject of litigation, to your knowledge?
3 A. Yes, it was.
4 Q. And what was the name of that case?
5 A. The Bigby case, Bigby v. City.
6 Q. Prior to the Court's judgment in Bigby, were any sergeants
7 promoted off the 1977 list?
8 A. Yes.
9 Q. Do you recall approximately how many?
10 A. I believe there were 108.
11 Q. And do you recall the racial breakdown of the successful
12 applicants?
13 A. Yes. Of that 108, rounded, about 86 percent were
14 promotions that went to whites; 10 percent were promotions that
15 went to blacks or African-Americans; and about 3.7 percent to
16 Hispanics. And then there were a few others and missing data.
17 Q. Let's look at each of the components of that test.
18 Do you know whether that written, what you call the
19 traditional written job test had an adverse impact?
20 A. Yes, it did. By applying the 80-percent rule analysis.
21 Q. How about the oral interview component?
22 A. Yes, it did.
23 Q. And the performance evaluation component?
24 A. Yes, it did.
25 Q. Now, did you continue to use the 1977 list after Bigby?
277
Joyce - direct
1 A. Yes.
2 Q. And how did you use it?
3 A. There was an affirmative action or a quota built into our
4 continued use of that examination.
5 Q. Was that imposed by the Court?
6 A. Yes, it was part of the Court's judgment.
7 Q. How did you promote off the list using that quota?
8 A. We made sure that we complied with the Judge's order in
9 that a specific number of minorities would be made in each
10 promotion.
11 Q. For how long did you use the 1977 list?
12 A. Until 1987 or 1988.
13 Q. Okay. You mentioned earlier there was another exam given.
14 Was it in '87 or '88?
15 A. It began in '87 and it carried over and was officialized in
16 '88, as I recall.
17 Q. Okay. Let's call it the '87 test just for purposes of
18 clarity. What was your role in the 1987 test?
19 A. At that time I was deputy commissioner of employment
20 services. So, again, I was the responsible person for the
21 whole project.
22 THE COURT: Was this for sergeant or lieutenant?
23 MR. HOLZHAUER: Lieutenant.
24 THE COURT: Was the other one for sergeant or
25 lieutenant?
278
Joyce - direct
1 MR. HOLZHAUER: Lieutenant.
2 THE WITNESS: Yes, they were both for lieutenant,
3 Your Honor.
4 THE COURT: Okay.
5 MR. HOLZHAUER: I'm sorry if I misspoke, Your Honor.
6 THE COURT: I thought I heard him say sergeants.
7 THE WITNESS: I did say sergeants were those who were
8 eligible to take the lieutenants. I might not have been clear.
9 BY MR. HOLZHAUER:
10 Q. You were explaining your role in that test.
11 A. Yes. I was the deputy commissioner for the bureau within
12 the department that is -- was fully responsible for that. So I
13 was the person responsible for the development and the
14 administration of the test.
15 Q. Mr. Joyce, do you recall what that test consisted of?
16 A. Yes. It had three parts: A written multiple choice, a
17 written short answer, which was a -- it required the person to
18 recall what the correct information is and to write the answer
19 down either in a phrase, a sentence, a few words, depending on
20 what the nature of the question was. And there was an oral
21 examination component.
22 Q. Now, you said that the first component was a written
23 multiple choice. How was that used?
24 A. That was used as a pass/fail hurdle. Persons had to get a
25 sufficient score on that in order to be moved on to the next
279
Joyce - direct
1 part of the exam.
2 Q. Why was it used that way?
3 A. Part of the Judge's order in the Bigby case was that we
4 cooperate with plaintiff's counsel in the development of the
5 '87 exam.
6 And it was agreed upon by parties that the written
7 test would be -- would not be used as a part of a final score,
8 but that it would only be used to eliminate a certain
9 percentage of people from further processing as an
10 administrative convenience.
11 Q. Was there a concern expressed that that written test might
12 have adverse impact?
13 A. Yes.
14 Q. How were the written short answer and oral board questions
15 or components used?
16 A. They were combined. The written short answer was weighted
17 20 percent. The oral examination subscore was weighted 80
18 percent.
19 Q. Did they have an adverse impact?
20 A. They would have. The raw scores had adverse impact, yes.
21 Q. You said they would have.
22 Did the City do something to deal with that adverse
23 impact?
24 A. Yes.
25 Q. What did it do?
280
Joyce - direct
1 A. We took the raw scores of both the written short answer and
2 the oral exam, and we used a process that is called race
3 norming. Specifically, we standardized the scores by race.
4 And that process eliminated the adverse impact.
5 Q. Okay. How long did the City continue to use the 1987 list?
6 A. Until the -- until late 1991.
7 Q. Why did the City stop using it in late 1991?
8 A. In '91, the Civil Rights Act was modified by Congress,
9 specifically making the practice of race norming impermissible.
10 And since our 1987 test had portions that were race normed, we
11 stopped using the results of that test.
12 Q. Between the time that the City stopped using the 1987 test
13 results and the time promotions began under the test that's at
14 issue here, the '94 test you mentioned, were any lieutenant
15 promotions made?
16 A. No.
17 Q. Did vacancies in lieutenant's rank occur during that
18 period?
19 A. Yes.
20 Q. Were they filled?
21 A. No.
22 Q. Turning to the 1994 lieutenants exam, the exam at issue,
23 did you prepare any of the components of that exam?
24 A. No, I did not.
25 Q. Did you work on the job analysis for the exam?
281
Joyce - direct
1 A. No.
2 Q. Did you do any of the work on the validation of that exam?
3 A. No.
4 Q. The parties have stipulated and agreed that the 1994 exam
5 had an adverse impact against minority applicants. Were you
6 involved in any attempt to address that adverse impact?
7 A. Yes.
8 Q. Did you consider any options to address that impact?
9 A. Yes, we did.
10 Q. What options did you consider?
11 A. The first that I recall, or one of the significant ones
12 that I was proposing, was to adopt the concept of banding.
13 Q. Had you had experience with banding in other tests?
14 A. Yes. We are also responsible for testing for promotion in
15 the fire department and had successfully used banding in that
16 instance.
17 Q. What roughly do you mean, just briefly, do you mean by
18 "banding"?
19 A. When you give a test, even if it's well constructed, there
20 is going to be a certain amount of error in it. Banding is the
21 concept that -- well, there are statistics that help to
22 identify, to quantify the amount of error in test scores.
23 One statistic is called the standard error of
24 difference. By using something equivalent to two times the
25 standard error of difference, you get a very good confidence
282
Joyce - direct
1 level that identifies the amount of error in a test score. And
2 if you apply that number, let's say, just for the sake of
3 discussion, it is six points, and you apply that to the array
4 of scores from persons from highest to lowest. What we're
5 really saying is that anyone within a 6-point band, from 100 to
6 94, let's say, cannot really be distinguished in terms of
7 relative competency because there is that much error in the
8 test score.
9 So what we would do is acknowledge the fact that
10 there is that error in the test score, identify a band, and
11 then within that band treat everyone equally for the purpose of
12 promotional consideration.
13 Q. So was banding used in conjunction with the 1994 test?
14 A. No.
15 Q. Why not?
16 A. It would not have been effective in eliminating or even
17 minimizing the adverse impact.
18 Q. Were you involved in consideration of other options to deal
19 with the adverse impact?
20 A. Yes.
21 Q. And what were they?
22 A. We also wanted to adopt for promotional consideration what
23 we -- what has become known as the merit, principal merit
24 concept, where a certain number of promotions would be made not
25 from the results of the competitive test scores, but on other
283
Joyce - direct
1 criteria that were job related.
2 Q. Did the City attempt to make such promotions with the 1994
3 promotional process?
4 A. Yes, we did.
5 Q. And how were the candidates for merit promotion under that
6 attempt selected?
7 A. The superintendent of the police department directed his
8 supervisory and command personnel to review each -- to review
9 the employees that worked for them, to nominate those who met
10 certain criteria in terms of education, assignments, length of
11 service, awards, productivity levels.
12 Those persons were nominated, and all persons
13 nominated were reviewed by a high ranking police panel that --
14 I forget the exact name of it now -- but it was an advisory
15 panel that was to review the qualifications and backgrounds of
16 the persons nominated this way and then to make recommendations
17 to the superintendent. That panel did that and recommended a
18 number of names to the superintendent for consideration for
19 these merit promotions.
20 Q. Were those candidates actually promoted?
21 A. No, they were not.
22 Q. Why not?
23 A. We had actually announced a promotion order that would have
24 promoted some of them. But there was a request for an
25 injunction or, I'm unfortunately not familiar -- an injunction
284
Joyce - cross
1 or a restraining order in the state court.
2 We lost at that level. We appealed it to the
3 Illinois Appellate Court, and we lost at that level. So we
4 were prohibited from making merit promotions the way we had
5 anticipated.
6 MR. HOLZHAUER: Thank you, Mr. Joyce.
7 CROSS-EXAMINATION
8 BY MR. FLAXMAN:
9 Q. Is it your testimony that the City stopped making
10 promotions from that 1987 list because of the Civil Rights Act
11 of 1991 and its outlawing of race norming?
12 A. Yes.
13 Q. And that the City decision to stop making promotions from
14 the 1987 list had nothing to do with there no longer being
15 vacancies in rank of lieutenant in 1991 and '92, is that right?
16 A. I don't recall that being any part of our decision making.
17 Q. Okay. So the decision is just solely about the Civil
18 Rights Act of 1991 for why the promotions were stopped from the
19 1987 list, is that right?
20 A. Yes.
21 Q. And who is the -- well, you said -- you talked about the
22 1987 test, is that right?
23 A. Yes.
24 Q. 1987 lieutenants test. You told us that that had -- well,
25 the 1987 test you told us had a traditional written multiple
285
Joyce - cross
1 choice test. Do you remember those words?
2 A. Yes.
3 Q. What did you mean by a "traditional written multiple choice
4 test"?
5 A. As I went on to say, it's the type where -- well, maybe I
6 didn't do it clearly enough. It's a type where your answers
7 are put onto an answer sheet. You're given generally four or
8 five choices. You make your mark on a separate answer sheet,
9 and that is machine scored.
10 Q. Was the traditional written multiple choice test for the
11 1977 lieutenants test prepared from the general orders, special
12 orders, statutes, municipal ordinances of the City of Chicago?
13 A. It's been a while. I know it would have included general
14 orders and relevant state statutes. It may not have included
15 municipal code items.
16 Q. Well, you were involved in the preparation of 1987 tests,
17 is that right?
18 A. Yes, I was.
19 Q. Let me show you pages 182, 3 and 4 from Exhibit 2 and ask
20 you if this was the job announcement that accompanied the 1987
21 lieutenants test?
22 THE COURT: Is there an exhibit number?
23 MR. FLAXMAN: It's Defendant's 2.
24 I'm sorry, Defendant's 1. I apologize. Page 182, 3
25 and 4.
286
Joyce - cross
1 BY MR. FLAXMAN:
2 Q. Is that the job announcement?
3 A. Yes.
4 Q. And did that -- were you involved in the preparation of
5 that job announcement?
6 A. I was responsible for it. Staff did it for me. I
7 ultimately approved it, so I was responsible, yes.
8 Q. And that job announcement identified the materials that
9 would be tested on the 1987 job knowledge test, is that right?
10 A. Yes.
11 Q. And was the 1987 job knowledge test another traditional
12 written multiple choice test?
13 A. In that a person's answers were put on paper and computer
14 scored, yes.
15 Q. And were the questions on the 1987 traditional written
16 multiple choice test prepared from the written materials that
17 were identified in that job announcement that's before you?
18 A. Yes.
19 Q. And to -- could I have that back?
20 To identify the general orders and special orders and
21 statutes and sections of the union contract that were in this
22 job announcement, how did you go about doing that for the 1987
23 test?
24 A. I don't remember with certainty. We typically get subject
25 matter experts to review potential source material.
287
Joyce - cross
1 Q. And what is a "subject matter expert"?
2 A. In this case someone in the police department who has
3 thorough knowledge of the position of lieutenant, as well as a
4 thorough knowledge of the materials from which test items might
5 be drawn.
6 Q. Okay. Let me direct your attention back to page 183 of
7 Defendant's Exhibit 1. That has the list of general orders
8 that were in the job announcement, is that right?
9 A. Yes.
10 Q. And one of those general orders is general order 80-3
11 dealing with summary punishment, is that right?
12 A. Yes.
13 Q. Was that on the reading list because in 1987 the panel of
14 experts had concluded that the general order about summary
15 punishment was important for a lieutenant to know?
16 A. I believe that's why it is there, yes. I, again, don't
17 remember with absolute certainty what happened ten years ago.
18 Q. Well, you weren't putting on unimportant general orders,
19 were you?
20 A. That was not our intent.
21 Q. You would try to test the important things that somebody
22 has to know to be a lieutenant, is that right?
23 A. Yes.
24 Q. You were trying as hard as you could to make that 1987 test
25 job related, weren't you?
288
Joyce - cross
1 A. Yes.
2 Q. And that -- that list of general orders from the 1987 test
3 also has general order 80-15, hospitalized arrestees, is that
4 right?
5 A. Yes.
6 Q. And, again, that was on there because the panel of experts
7 had decided that that was an important order for a lieutenant
8 to know?
9 A. Yes.
10 Q. There is also a general order 81-10, preliminary
11 investigations, is that right?
12 A. Yes.
13 Q. And that was on there because that was also important for a
14 lieutenant to know?
15 A. Yes.
16 Q. And the same with 81-21, uniform citizens dress and
17 personal equipment?
18 A. Uniforms citizens dress.
19 Q. Excuse me?
20 A. Yes.
21 Q. That was on the list, and that was on the list because it
22 was important for a lieutenant to know?
23 A. Yes.
24 Q. How about 82-3, interrogations, field and custodial, is
25 that on the list?
289
Joyce - cross
1 A. Yes.
2 Q. And was it on the list because the panel of experts had
3 decided that it was important for a lieutenant to know?
4 A. Yes.
5 Q. 82-7, immediate emergency plan, was that on the list?
6 A. Yes.
7 Q. Was that on the list because it was important for
8 lieutenants to know?
9 A. Yes.
10 Q. 83-13, field reporting manual/beat book, was that on the
11 list?
12 A. Yes.
13 Q. Was that on the list because it's important for a
14 lieutenant to know?
15 A. Yes.
16 Q. How about 86-2, city licensed premises, was that on the
17 list?
18 A. City licensed premises and licenses, yes.
19 Q. And was that on the list because it was important for a
20 lieutenant to know?
21 A. Yes.
22 Q. And 86-8, deadly force, was that on the list?
23 A. Yes.
24 Q. Was that on the list because it was important for a
25 lieutenant to know?
290
Joyce - cross
1 A. Yes.
2 Q. And 80-8, watch changes, roll call training, was that on
3 the list?
4 A. 80-8?
5 Q. Right.
6 A. Yes.
7 Q. Was that on the list because it was important for a
8 lieutenant to know?
9 A. Yes.
10 Q. How about 79-15, do you see that?
11 A. Yes, I do.
12 Q. What's the title of that order?
13 A. Patrol field, patrol field lieutenants, excuse me.
14 Q. And that was on the list because that was important for a
15 lieutenant to know about that order, is that right?
16 A. Yes.
17 Q. Now, did you also review the job announcement for the 1994
18 lieutenants test before it was posted?
19 A. Generally, yes.
20 Q. Wasn't that part of your job, to review it before it was
21 posted?
22 A. The posting of it is my responsibility, yes.
23 Q. As a matter of fact, wasn't it typed in your office?
24 A. I don't recall.
25 Q. Well, when you -- it was part of your job to approve it
291
Joyce - cross
1 though, is that right?
2 A. Yes.
3 Q. When you -- before you approved it, did you look it over?
4 A. In a general sense, yes.
5 Q. Well, did you look it over to see if it was appropriate to
6 be approved by the department of personnel in the City of
7 Chicago?
8 A. Yes.
9 Q. And did you, in fact, approve it?
10 A. Yes.
11 Q. And why did you approve it?
12 A. Because there needs to be an exam announcement when we have
13 an exam.
14 Q. And that exam announcement you thought was appropriate, is
15 that right?
16 A. Yes.
17 Q. And that exam announcement also had the materials on which
18 the written test would be based, is that right?
19 A. Yes.
20 Q. And let me show you part of Exhibit 1, pages 234 to 238,
21 the Chicago Police Department Promotional Examination Reading
22 List. Was that part of the job announcement or the vacancy
23 announcement?
24 A. There was a reading list. That was part of the
25 announcement. I don't recognize it in this print format --
292
Joyce - cross
1 Q. Well --
2 A. -- as being the one that we incorporated in the
3 announcement.
4 Q. Was it in a different format?
5 A. I don't recall what format it was in.
6 Q. Was it in a readable format, a format that was intended to
7 be understandable by Chicago police sergeants?
8 A. Yes.
9 MR. FLAXMAN: Well, I think the parties have agreed
10 that that contains the reading list. If we could take a minute
11 so we could see if there is an objection to that statement?
12 MR. HOLZHAUER: I don't believe the announcement had
13 the reading list on it.
14 BY MR. FLAXMAN:
15 Q. Well, was there a reading list that was part of the
16 announcement, Mr. Joyce?
17 A. I'm not sure.
18 Q. Was there a reading list that was given to police sergeants
19 so they knew what to study for the 1994 --
20 THE COURT: Is this appendix F? Are you showing him
21 appendix F to the exhibit?
22 MR. FLAXMAN: Yes, that's what he has is appendix F,
23 page 234.
24 THE COURT: And what's the problem with it?
25 MR. HOLZHAUER: Your Honor, appendix F is the reading
293
Joyce - cross
1 list that was sometime thereafter given to the candidates. It
2 was not part of the notice that was posted that he's examining
3 Mr. Joyce on or part of Mr. Joyce's responsibilities, from my
4 understanding.
5 THE COURT: Okay.
6 MR. FLAXMAN: And I think that's sort of what he
7 testified to.
8 BY MR. FLAXMAN:
9 Q. At some point was a reading list approved by the department
10 of personnel for the 1994 lieutenants test?
11 A. I don't recall.
12 Q. Well, you see appendix F in front of you?
13 A. Yes.
14 Q. Do you know where that came from?
15 A. I believe that's from the test developer's final report.
16 Q. Do you know whether or not that reading list was ever
17 promulgated or distributed to Chicago police sergeants who were
18 going to take the test?
19 A. I had an understanding that that was the case. But I
20 frankly don't have a specific knowledge of how that happened.
21 Q. Would that distribution have gone through your office, your
22 department?
23 A. No.
24 Q. How would that have happened?
25 A. It could have gone through the police department for
294
Joyce - cross
1 distribution through the police department. It could have been
2 issued to persons as they applied for the examination.
3 Q. So are you telling us that you did not approve that reading
4 list like you did approve the job announcement? Is that what
5 your testimony is?
6 A. In that the test process went forward, the department -- it
7 had the backing of the department of personnel.
8 Q. No. I just want to be clear, and I'm not trying to put
9 words in your mouth, Mr. Joyce.
10 You approved the notice of the 1994 test, is that
11 right?
12 A. Yes.
13 Q. And there was also a reading list that was distributed by
14 somebody to people who took the test?
15 A. I believe that's the case, yes.
16 Q. Did you approve the reading list?
17 A. I did not personally, no.
18 Q. Did your office approve the reading list?
19 A. I don't recall.
20 Q. Thank you. Can I have my exhibit?
21 Now, you talked about attempts to address adverse
22 impact from the results of the 1994 lieutenants test.
23 A. Yes.
24 Q. And you talked about banding. Do you remember that?
25 A. Yes.
295
Joyce - cross
1 Q. And you also talked about -- you talked about was banding
2 -- you told us, I think, that banding was a mechanism that had
3 been used by the City to minimize adverse impact in fire
4 department promotions?
5 A. Yes.
6 Q. And then you told us about merit promotions, is that right?
7 A. Yes.
8 Q. Is merit promotions a mechanism that has been used by the
9 City to minimize adverse impact in promotions to the D-2 rank
10 in the police department?
11 A. It has had that effect, yes.
12 Q. What do you mean it has had -- well, first what is the D-2
13 rank?
14 A. D-2 is the pay grade that is characterized as positions
15 like police officer assigned as detective, police officer
16 assigned as youth officer, police officer assigned as -- well,
17 there used to be for dispatcher, but that has been reorganized.
18 Q. And when have -- when did merit promotions start to be used
19 to make promotions to the D-2 rank?
20 A. I don't know exactly. It's been at least ten years.
21 Q. And when you say it's had that effect of reducing disparate
22 impact, what do you mean?
23 A. It is my understanding that the persons who are appointed
24 to detective based on the merit process are relatively
25 representative of the ranks from which promotions could be made
296
Joyce - cross
1 in that there is a diversity of ethnicity, race and gender.
2 Q. And by "relatively representative," do you mean that --
3 what exactly do you mean? That if 30 percent of the people who
4 apply to be detectives are African-American, that 30 percent of
5 those who are promoted by merit are African-American? Is that
6 what you mean?
7 A. No. There is not that direct a link or goal set.
8 Q. Well, is there an adverse impact on any group from merit
9 promotions to the D-2 rank?
10 A. I'm not aware of any.
11 Q. And has the making of promotions by merit to the D-2 rank
12 resulted in the promotion of more minorities than promotions
13 from the test used to make promotions to the D-2 rank?
14 A. That is my understanding.
15 Q. Now, do you recall back in -- well, let's go back to --
16 going back to the merit promotions to minimize the adverse
17 impact from the 1994 lieutenants test, were persons actually
18 selected who would have been the merit promotees?
19 A. Did you say were persons actually selected?
20 Q. Right.
21 A. Yes, there were persons identified.
22 Q. And how many -- how many total merit promotees were sought
23 by the City, intended to be made by the City before that
24 injunction chimed in?
25 A. Are you asking as a total figure or -- I'm not sure what
297
Joyce - cross
1 your question is.
2 Q. Well, there were a certain number of people who went to the
3 training academy?
4 A. Yes.
5 Q. How many was that?
6 A. Who were meritorious appointees?
7 Q. Yes.
8 A. 13.
9 Q. Of those 13, do you recall what the racial composition was?
10 A. Not offhand, no.
11 Q. Was it -- were minorities better represented among those 13
12 than they were among the first 54 who were being promoted at
13 this time off the list?
14 A. Yes.
15 Q. Now --
16 MR. FLAXMAN: I need a minute.
17 BY MR. FLAXMAN:
18 Q. Let me show you what has been marked as Plaintiffs' Exhibit
19 46. I'll ask you to look at the last page.
20 MR. HOLZHAUER: You haven't offered it.
21 MR. FLAXMAN: No. I want to be sure that you have a
22 copy, which is why I am looking at you. All right.
23 BY MR. FLAXMAN:
24 Q. Is that your signature on the last page?
25 A. Yes, it is.
298
Joyce - cross
1 Q. And is the -- is this an affidavit that you signed for
2 submission to a federal court?
3 A. Yes.
4 MR. FLAXMAN: I would move --
5 BY MR. FLAXMAN:
6 Q. And did you sign this affidavit, Plaintiffs' Exhibit 46, in
7 your capacity as then deputy commissioner of the City of
8 Chicago, department of personnel?
9 A. Yes.
10 MR. FLAXMAN: Okay. I would move the admission into
11 evidence at this time of Plaintiffs' 46.
12 MR. HOLZHAUER: Object, Your Honor. That's hearsay.
13 It's the same rule that applies to the expert reports, unless
14 there is some impeachment going on here, which I haven't heard
15 yet.
16 THE COURT: He's the deputy commissioner for the City
17 of Chicago. Don't you think this is a party? Isn't he an
18 officer of the City of Chicago?
19 MR. HOLZHAUER: I'm not sure about that, that he's an
20 officer.
21 THE COURT: All right. Lay a better foundation,
22 Mr. Flaxman.
23 BY MR. FLAXMAN:
24 Q. Well, at the time you submitted this affidavit, were you
25 responsible for staffing approximately 39,000 positions of city
299
Joyce - cross
1 government?
2 A. Yes.
3 Q. And was it part of your responsibilities to oversee the
4 development, administration and scoring of career service
5 promotional testing for uniform positions in the Chicago Police
6 Department?
7 A. Yes.
8 Q. And when you submitted this document, did you read it over
9 before you signed it?
10 A. Yes, I did.
11 Q. And was everything in that document true when you submitted
12 it?
13 A. To the best of my knowledge, yes.
14 Q. And did you submit it in the course of your duties as
15 deputy commissioner of the City of Chicago department of
16 personnel?
17 A. Yes.
18 MR. FLAXMAN: I re-move the exhibit.
19 THE COURT: Who appoints you to that position, sir?
20 THE WITNESS: I was appointed by the commissioner of
21 personnel at the time, who is appointed by the mayor, and that
22 appointment is subject to approval by the city council.
23 THE COURT: Which appointment?
24 THE WITNESS: The appointment of the commissioner of
25 personnel.
300
Joyce - cross
1 THE COURT: And you are not?
2 THE WITNESS: That is correct, I am not.
3 THE COURT: It sounds to me like he's an officer.
4 And the responsibilities that he's had in this -- in connection
5 with the matters at issue in this case certainly seem to make
6 him as close to a party as we're going to have. So I'll take
7 this as a party admission.
8 Objection overruled. It will be admitted.
9 (Plaintiffs' Exhibit 46 received in evidence.)
10 BY MR. FLAXMAN:
11 Q. Let me direct your attention to page 4, paragraph 8 at the
12 bottom. Do you see where it says, "The City could not have
13 validated the 19" --
14 MR. HOLZHAUER: Objection, Your Honor. This is
15 completely beyond the scope of direct. There was no mention or
16 discussion of validation of an exam for rank order purposes
17 during the direct examination.
18 MR. FLAXMAN: He did testify about the 1987 test on
19 direct.
20 MR. HOLZHAUER: He did not testify about rank order
21 or validation of rank order, which is the area you are going
22 into, Mr. Flaxman.
23 THE COURT: Overruled.
24 BY MR. FLAXMAN:
25 Q. I would direct your attention to paragraph 8, page 4. Do
301
Joyce - cross
1 you see where it says, "The City could not have validated the
2 1987 lieutenant examination for rank order use"?
3 A. Yes.
4 THE COURT: Let me stop you for one moment.
5 I'm not going to strictly enforce the scope of direct
6 rule. I will enforce the scope of cross and redirect, because
7 I don't want to go on forever in those things. But he could
8 call him in his case. I mean, let's get these witnesses on
9 once.
10 MR. HOLZHAUER: Your Honor, Mr. Flaxman is asking
11 almost identical to the kind of question that I tried to make
12 with Mr. Bishop yesterday.
13 THE COURT: Well, let's not revisit history, counsel.
14 I'm going to be fairly liberal on that. If I think it's a
15 matter that's going to be coming up, why have Mr. Flaxman call
16 him back when it comes back to his turn in his case?
17 MR. HOLZHAUER: I'm not sure that he would be
18 permitted to, because he would basically be calling him as an
19 expert on this issue, and --
20 THE COURT: Well, I haven't heard his testimony.
21 MR. HOLZHAUER: Well, I think he's going to testify.
22 THE COURT: If he hasn't been designated -- he hasn't
23 been designated as an expert, has he, Mr. Flaxman?
24 MR. FLAXMAN: No, Judge.
25 THE COURT: Okay. So he's testifying in his capacity
302
Joyce - cross
1 as deputy director of personnel. What he knows about these
2 tests, which is considerable, given his testimony here, on that
3 subject I think is fair game. I don't know if we get to
4 opinion questions, I might have a different feeling.
5 But he has submitted an affidavit that, you know,
6 talks about these tests in the Bigby case. It goes back quite
7 a ways, Mr. Flaxman. I'm not sure how relevant all this is
8 really. And I don't want to go fishing around back in these
9 cases either. This is a 1990 affidavit, a 1980 case. So, you
10 know, let's not beat this one to death.
11 MR. HOLZHAUER: Your Honor, if I may make just a
12 brief record on this.
13 I believe Mr. Flaxman is going to elicit testimony
14 that Mr. Joyce took the position or stated the opinion in this
15 affidavit, an opinion with regard to the ability to validate a
16 test for rank order promotion, and then he's going to make
17 that -- try to elicit that basically as an opinion of someone
18 of great experience. I think under these circumstances it is
19 not within the scope of his direct. Since he hasn't called
20 him --
21 THE COURT: We're beyond that, counsel. I've told
22 you we're beyond that.
23 MR. HOLZHAUER: Thank you, Your Honor.
24 THE COURT: You know, we're beyond that objection.
25 If you are getting into something else -- but I'm looking at an
303
Joyce - cross
1 affidavit which he filed in federal court that says just that.
2 So if it was good enough for -- is this Judge Marshall? If
3 it's good enough for Judge Marshall, it's good enough for me.
4 Let's go.
5 BY MR. FLAXMAN:
6 Q. Just to clarify one point, this affidavit, was that about
7 the 1987 test --
8 A. Yes.
9 Q. -- lieutenants test?
10 And it had -- it was submitted in the 1980 lawsuit
11 but it related to the 1987 test, is that right?
12 A. That's correct.
13 Q. Now, let me get back to page 4 where you wrote, "We have no
14 evidence that a higher score reflects expected or actual
15 superior performance. And I know of no practical way we could
16 obtain such evidence."
17 What did you mean by that?
18 A. Basically what it says. I was unable to come up with a
19 method of proving or satisfying people that the person ranked
20 number one was better than the person ranked number two was
21 better than the person ranked number three. And I didn't know
22 how that could be done, given my understanding of the world of
23 testing and the Chicago Police Department in the City of
24 Chicago.
25 Q. Now, let's go to the second sentence, "In addition, the
304
Joyce - cross
1 examination could not measure some factors known to be critical
2 to the job of lieutenant."
3 Did you -- and why did you adopt that sentence? Why
4 did you say that?
5 A. It was leading up to -- well, actually, this affidavit
6 obviously goes to a defense of our decision making for use of
7 the '87 test, as you know. And that was -- that was an opinion
8 of mine, that the test that we developed did not measure every
9 single important attribute, knowledge, skill, or ability that
10 was necessary for being a good lieutenant.
11 Q. In 1990 when you submitted this affidavit, was it the
12 official policy of the City of Chicago that the position of
13 police lieutenant requires command and leadership abilities?
14 A. Our job analysis would have indicated that I'm sure.
15 Q. And when you said "our job analysis," did you do a job
16 analysis for the 1987 test?
17 A. Yes.
18 Q. And when you did that job analysis, did you try to be
19 complete and thorough and professional?
20 A. Yes.
21 Q. You go on in that affidavit, you say -- you said, "It would
22 be difficult to show that the items used on the test fully
23 reflected those tasks and" the letter K, the letter S, the
24 letter A, you had K S A and a small S, "that would determine to
25 be both important to the job and capable of being tested for."
305
Joyce - redirect
1 First, when you used KSAs, what did you mean?
2 A. That's a shorthand term for knowledge, skill, and ability,
3 or plural, knowledge, skill, and abilities.
4 Q. And what did you mean when you said, "It would be difficult
5 to show that the items used on the test fully reflected even
6 those tasks and KSA"?
7 A. That in some cases, the translation of a question to
8 written form isn't exactly the way that the knowledge, skill,
9 or ability is performed on the job.
10 Q. Okay.
11 MR. FLAXMAN: If I could have one minute, Your Honor?
12 (Discussion off the record.)
13 MR. FLAXMAN: I have nothing further.
14 THE COURT: Thank you.
15 REDIRECT EXAMINATION
16 BY MR. HOLZHAUER:
17 Q. Mr. Joyce, that affidavit that you testified about, did
18 you -- what test was that in relationship to?
19 A. The 1987 police lieutenant examination.
20 Q. Have you analyzed the 1994 police lieutenants exam in the
21 same way?
22 A. No.
23 Q. Have you reached any similar conclusions or based -- made
24 any analysis that would allow you to reach similar conclusions
25 or different conclusions as to that exam?
306
Barrett - direct
1 A. No.
2 MR. HOLZHAUER: Thank you.
3 MR. FLAXMAN: I have nothing further.
4 (Witness excused.)
5 THE COURT: Let's take a short break, be back in five
6 or ten minutes.
7 (Recess.)
8 THE COURT: Mr. Holzhauer.
9 MR. HOLZHAUER: Your Honor, I call Dr. Gerald
10 Barrett.
11 THE COURT: Please raise your right hand.
12 (Witness duly sworn.)
13 THE COURT: Have a seat, please.
14 GERALD BARRETT, DEFENDANT'S WITNESS, SWORN
15 DIRECT EXAMINATION
16 BY MR. HOLZHAUER:
17 Q. Good afternoon, Dr. Barrett.
18 A. Good afternoon.
19 Q. Would you please state your full name and spell your last
20 name for the record.
21 A. Gerald Van Barrett, B-a-r-r-e-t-t.
22 THE COURT: One moment.
23 We're going to go until about quarter to 5:00 today,
24 maybe a little later. We have moot court in here today, so we
25 have to clear up.
307
Barrett - direct
1 By the way, if you folks would like to leave your
2 materials in the courtroom, it's up to you.
3 MR. HOLZHAUER: Okay.
4 THE COURT: They're probably safe on that table over
5 there against that wall so you don't have to schlep them back
6 and forth.
7 MR. HOLZHAUER: Thank you, Your Honor.
8 THE COURT: All right.
9 BY MR. HOLZHAUER:
10 Q. Dr. Barrett, what is your occupation?
11 A. I'm a professor at the University of Akron in the
12 department of psychology. I'm also president of a consulting
13 firm.
14 Q. What's the name of that consulting firm?
15 A. Barrett & Associates.
16 Q. And what business generally is the consulting firm in?
17 A. Human resource consulting.
18 Q. Did you have any role in the 1994 City of Chicago police
19 lieutenants promotional exam?
20 A. Yes.
21 Q. Can you just briefly tell us at this point what that role
22 was?
23 A. We were contracted to develop the promotional examination
24 for Chicago police lieutenant promotional examination.
25 Q. I'd like to start off by showing you a document that's been
308
Barrett - direct
1 marked and received into evidence as Exhibit 2. It's at the
2 back of this large volume.
3 Can you identify that document for us, Dr. Barrett?
4 A. This is my master vita as of September 15th, 1997.
5 Q. Is that accurate and current?
6 A. Yes.
7 Q. I'd like to go through a bit of your background quickly.
8 First of all, can you briefly summarize your education, just
9 your advanced degrees?
10 A. I received a master's in general psychology from Case
11 Western Reserve University in 1959. I received a PhD in
12 industrial psychology from Case Western Reserve University in
13 1962. I received a JD from University of Akron School of Law
14 in 1985.
15 Q. Can you tell me when you first became a member of the
16 University of Akron faculty?
17 A. 1973.
18 Q. And when did you begin your work with Barrett & Associates?
19 A. 1973.
20 Q. So you went to law school after those activities began?
21 A. That's correct.
22 Q. Why did you go to law school?
23 MR. FLAXMAN: Objection.
24 THE COURT: Overruled.
25 MR. HOLZHAUER: We all ask ourselves these questions
309
Barrett - direct
1 every day.
2 BY THE WITNESS:
3 A. There are several reasons. One of the big reasons was the
4 fact that when I received my PhD, law was not involved at all
5 in the field of personnel selection.
6 After 1971, the Greef case, it became very important
7 for my teaching and research, and also it's helpful in
8 consulting practice.
9 BY MR. HOLZHAUER:
10 Q. Can you tell me what academic appointments you've had.
11 A. I was appointed associate professor at the University of
12 Pittsburgh; associate professor, University of Rochester;
13 professor at the University of Akron.
14 Q. Okay. Have you held any department office at the
15 University of Akron?
16 A. I was -- yes.
17 Q. What was that?
18 A. I was a chair between 1973 and 1995.
19 Q. Do you teach any courses that are related to employee
20 selection and promotional exams?
21 A. Yes.
22 Q. Can you tell us a bit about those courses.
23 A. There are three main courses that I teach in this area.
24 One would be advanced test and measurements at the graduate
25 level, the second course would be personnel selection and
310
Barrett - direct
1 performance evaluation, and the third would be personnel
2 psychology and the law.
3 Q. Have you supervised any dissertations in this field?
4 A. Yes.
5 Q. How many approximately?
6 A. About 30.
7 Q. What does that involve?
8 A. That involves working with a student who has a master's
9 degree and formulating a research project problem and going
10 through all stages of the research process of the dissertation.
11 Q. Have you published any books or monographs in the field of
12 industrial psychology?
13 A. Yes.
14 Q. How many?
15 A. Four.
16 Q. Any articles in peer-reviewed journals in that discipline?
17 A. Yes.
18 Q. How many?
19 A. Over 130.
20 Q. Are these all in the field of industrial psychology?
21 A. Yes.
22 Q. Do any of them relate to employee selection and promotional
23 testing?
24 A. Yes.
25 Q. Do you know approximately how many?
311
Barrett - direct
1 A. I would say 40 to 50, around that area.
2 Q. Have you received any honors or awards in your professional
3 career?
4 A. Yes.
5 Q. Can you tell us about those briefly?
6 A. I received a diplomate from the Professional Board of
7 Industrial Psychology, I'm a fellow of the American
8 Psychological Association, and the Society of Industrial
9 Organizational Psychology awarded me the Professional Practice
10 Award.
11 Q. Thank you.
12 You also list some paper presentations that you've
13 made over the years in your vita. Can you tell us what field
14 they were in and -- what field they were in, please.
15 A. They're in the field of industrial psychology.
16 Q. Approximately how many?
17 A. About a hundred.
18 Q. In addition to your academic work, can you describe your
19 consulting practice for us?
20 A. Our firm works in three main areas. The first area would
21 be the area of personnel selection, developing tests for
22 initial selection, and promotion in public and private
23 organizations. The second area would be the area of
24 compensation, often pay equity studies. And the third area is
25 litigation support services.
312
Barrett - direct
1 Q. When was Barrett & Associates founded again?
2 A. 1973.
3 Q. Do you have any idea how many clients you've worked for?
4 A. I would say around 100.
5 Q. Do you know approximately how many examinations you've
6 prepared?
7 A. I would say we usually do 20 or 30 a year, at least.
8 Q. Since the founding of the company?
9 A. I would say so, yes.
10 Q. Prior to your work for the City of Chicago, had you
11 developed promotional exams in the public safety field, by
12 which I mean police and fire?
13 A. Yes.
14 Q. Can you briefly describe that experience for us?
15 A. Various clients include the City of Columbus, City of
16 Akron, City of Youngstown, City of Bedford Heights.
17 And it all -- the process is always the same. We do
18 a customized job of selection. It always involves job
19 analysis, development of a test which is tailored to that
20 organization, that city, and we always validate by producing a
21 report of some type.
22 Q. So you don't use the same test over and over again in these
23 jurisdictions?
24 A. That's correct.
25 Q. Do you know roughly how many public safety exams you've
313
Barrett - direct
1 developed over the years?
2 A. I would say at least 50.
3 Q. As part of that work, have you conducted job analyses?
4 A. Yes.
5 Q. And approximately how many job analyses have you conducted?
6 A. I'm sure I've conducted over 500 myself and probably in the
7 thousands if you talk about questionnaire approach.
8 Q. Finally, have you been involved as a witness in litigation
9 over employee selection of promotion litigation?
10 A. Yes.
11 Q. Has all of your work been on behalf of employers?
12 A. No.
13 Q. Have you represented plaintiffs in those cases or worked
14 for plaintiffs in those cases?
15 A. Yes.
16 Q. What type of work have you done for government agencies?
17 A. Most recently for the Office of Federal Contract Compliance
18 Programs. We were involved in a case of OFCCP versus Provident
19 Bank where the issue was whether or not there was
20 discrimination in hiring of individuals for the bank. There
21 was an allegation of race discrimination. We prepared a report
22 which resulted in a settlement, a fairly large settlement by
23 the bank.
24 A second case we performed recently for OFCCP
25 involved CEI, a large utility. And, again, it was a very
314
Barrett - direct
1 similar issue. And, again, our report and the settlement -- it
2 was a relatively large settlement for the plaintiffs.
3 Q. So these were cases in which the OFCCP was doing
4 enforcement litigation?
5 A. Yes.
6 Q. Dr. Barrett, have any of the public safety promotional
7 exams that you've mentioned you've developed over the years
8 been challenged under Title VII?
9 MR. FLAXMAN: Objection. I think we're trying to
10 bolster his credibility by relying on what happened in other
11 lawsuits. I think that's improper.
12 THE COURT: His experience in other lawsuits is fine.
13 I'm not going to be impressed by the results particularly. I
14 would like to know what he's done.
15 BY THE WITNESS:
16 A. Since 1973, we had been involved in litigation concerning
17 our own tests in the City of Akron, City of Columbus, other
18 areas, places. Each time the Court has said it was valid and
19 nondiscriminatory.
20 BY MR. HOLZHAUER:
21 Q. Have any of these public safety exams that you have
22 developed utilized a written job knowledge test, oral briefing
23 exercise and in-basket simulation other than the City of
24 Chicago?
25 A. Yes.
315
Barrett - direct
1 Q. Have they been challenged under Title VII?
2 MR. FLAXMAN: Objection. Could we have more
3 specificity as to which ones rather than a generalized
4 question?
5 MR. HOLZHAUER: Certainly.
6 BY MR. HOLZHAUER:
7 Q. Can you let us know which ones those were?
8 A. Most recently would be Stubbs versus the City of Cleveland,
9 in the summer of 1997 in federal court. They attempted to
10 obtain a TRO. We prevailed. They dropped the case.
11 The Sixth Circuit recently cited a case, I believe,
12 the black fire fighters in 1996, which goes back five or six
13 years at least, where we used the same format. I believe we
14 did the same.
15 Q. Which city was that?
16 A. The city -- I'm sorry.
17 Q. The black fire fighters, which --
18 A. That was the City of Akron.
19 Q. Okay.
20 A. I think there was a similar case involving the police also.
21 Q. Dr. Barrett, you testified a few moments ago that your
22 company was the consultant retained by the City of Chicago to
23 prepare the 1994 lieutenants exam. What is your rate of
24 compensation for that work?
25 A. Are you asking for the firm or my personal rate charge?
316
Barrett - direct
1 Q. Perhaps you can describe your rate structure for yourself
2 as well as the firm?
3 A. I believe we signed a contract for $350,000 for the
4 promotional examination for lieutenant. And my rate per hour
5 is 250 an hour.
6 Q. And then your colleagues?
7 A. It varies based upon their experience from, I believe, 150
8 for some of our vice-presidents, $75 for programmers, $20 for
9 clerical.
10 Q. Now, you mentioned that you charge 250,000 and you have --
11 $250 per hour and you had a $350,000 budget for the test
12 development. Does that rate also apply for your litigation
13 support work?
14 A. Yes.
15 Q. Does that include your testimony here?
16 A. Yes.
17 Q. Do you know how much Barrett & Associates has been paid to
18 date for its work on the lieutenants exam?
19 A. We were paid the 350,000 some time ago.
20 Q. Do you have any outstanding invoices for additional work on
21 this exam?
22 A. Yes.
23 Q. Do you know approximately how much they are for?
24 A. I believe it's 136,000.
25 Q. Does that get you pretty much up to date?
317
Barrett - direct
1 A. It's to the end of last month it would be, yes.
2 Q. Dr. Barrett, how did you come to be retained by the City of
3 Chicago to develop the lieutenants exam?
4 A. We had developed the sergeants examination for the City of
5 Chicago. And sometime, I believe in early April, Dr. Cellar, a
6 vice-president of our firm who has his office here in Chicago,
7 called me. He said -- he told me he had been contacted by the
8 City of Chicago Law Department, and that the --
9 MR. FLAXMAN: Let me object to testimony about what
10 Dr. Cellar told him as hearsay.
11 THE COURT: Is it being admitted for the truth? Is
12 it being offered for the truth?
13 MR. HOLZHAUER: I don't believe so, no.
14 THE COURT: Why is it being offered?
15 MR. HOLZHAUER: It's just being offered for how
16 Dr. Barrett learned about the opportunity to do the City of
17 Chicago police force exam.
18 THE COURT: It will be accepted in that context, but
19 not for the truth of the matter.
20 BY MR. HOLZHAUER:
21 Q. Go ahead.
22 A. He informed me that HR Strategies had the contract for the
23 promotional examination for police lieutenant, but they could
24 not meet the City's time line, and they were not going to be
25 retained any longer.
318
Barrett - direct
1 And the question was could we meet the time line of
2 the City of Chicago. I conferred with my people and I said,
3 yes, we could meet that time line.
4 Q. And you were retained at that point?
5 A. I think it was a little more complex. I think we had to
6 put a proposal in and have it accepted.
7 Q. Now, what type of work had you done on the sergeants exam
8 for the City of Chicago?
9 A. We had developed a promotional examination. And the work
10 involved, it's a traditional job analysis, involved
11 interviewing a number of sergeants. We also interviewed 28
12 lieutenants during the process. We developed three tests, a
13 written job knowledge test, an in-basket test and an oral
14 briefing exercise. And we administered the test at that point
15 in time.
16 Q. You said "at that point in time." When was this exam
17 given?
18 A. The sergeants exam?
19 Q. Yes.
20 A. I don't recall the exact date of that exam.
21 Q. Was it the 1990s, 1980s?
22 A. Well, it must have been in 1993, I assume. I'm talking
23 about the time frame of 19 -- I believe April of 1994.
24 Q. So that was work you did basically immediately prior to
25 doing this lieutenants exam?
319
Barrett - direct
1 A. Yes.
2 Q. Now, what were you retained to do precisely with regard to
3 the lieutenants exam?
4 A. To develop a valid nondiscriminatory test process.
5 Q. When you say -- thank you. I'm sorry.
6 When you say you were retained to develop a valid
7 test, what do you mean by "valid"?
8 A. Under professional practice and legal guidelines, there is
9 three different types of validity: Construct,
10 criterion-related and content. So it would be one of those
11 three types. In our case it was content validity.
12 Q. Now, you mentioned guidelines. What were the guidelines
13 that you used or referred to in developing your test exam?
14 A. These are administrative guidelines put out in 1978, the
15 main guidelines, by the Equal Employment Opportunity
16 Commission, Department of Justice, Department of Labor, the
17 Civil Service Commission, which gives some framework for what
18 they believe should make a legally acceptable test.
19 Q. I'd like to show you briefly a document that's been marked
20 and received into evidence as Defendant's Exhibit 27. Can you
21 show me -- tell what that is. Leave that stuff there.
22 A. Okay. This is the Uniform Guidelines for Employee
23 Selection Procedures of 1978.
24 Q. Is that the guidelines you were just referring to?
25 A. Yes.
320
Barrett - direct
1 Q. Dr. Barrett, I would like you to -- Dr. Barrett, are there
2 any other professional guidelines that you use or refer to in
3 your development of test exams of this sort?
4 A. Well, the guidelines also have some questions and answers
5 which came out in 1979 and 1980. In terms of professional
6 guidelines, there is also the Standards for Psychological Tests
7 put out by the American Psychological Association, among
8 others. And there is the Principles for Personnel Selection,
9 which is put out by the Society for Industrial and
10 Organizational Psychology.
11 Q. Did you review and rely upon them in the preparation of
12 this exam?
13 A. Yes.
14 Q. I'd like you to look at Defendant's Exhibit 25 in that same
15 book.
16 A. This is the Standards for Educational and Psychological
17 Testing.
18 Q. Is that the document that's published by the American
19 Psychological Association that you mentioned?
20 A. Yes.
21 Q. And those are the standards that are applicable to the
22 preparation of promotional exams?
23 MR. FLAXMAN: Can I object to the leading at this
24 stage?
25 THE COURT: I think that this is a lot easier than --
321
Barrett - direct
1 I mean, this isn't contested, is it, Mr. Flaxman?
2 MR. FLAXMAN: Well, in an indirect way it is, yeah.
3 I don't think --
4 THE COURT: That this document is what it says it is?
5 MR. FLAXMAN: Oh, no, no.
6 THE COURT: That's all he's doing.
7 MR. FLAXMAN: Well, he's suggesting to the witness
8 that he actually looked at this when he did the test. And I
9 don't know if that's right.
10 THE COURT: That wasn't the question he just asked.
11 Overruled.
12 BY THE WITNESS:
13 A. Yes.
14 BY MR. HOLZHAUER:
15 Q. Dr. Barrett, did you look at this booklet in preparation of
16 your exam?
17 A. Yes.
18 Q. Did you look at this booklet and refer to this booklet in
19 the preparation of your validation report related to the exam?
20 A. Yes.
21 Q. I'd also like you to turn to a document that's been marked
22 Defendant's Exhibit 26. Can you tell me what that is?
23 A. This is the Principles for the Validation and Use of
24 Personnel Selection Procedures published by the Society for
25 Industrial and Organizational Psychology in 1987.
322
Barrett - direct
1 Q. This Society of Industrial and Organizational Psychology,
2 does it go by some shorter name than that?
3 A. SIOP.
4 Q. Does this document go by some shorter name than the one you
5 just read off?
6 A. Often it goes by the Principles?
7 Q. The SIOP Principles?
8 A. The SIOP Principles, yes.
9 Q. Is this a document that's applicable to the preparation of
10 promotional examinations generally?
11 A. Yes.
12 Q. Did you refer to this document and rely upon this document
13 in the preparation of your examination?
14 A. Yes.
15 Q. Did you use and refer to this document in the preparation
16 of your validation report?
17 A. Yes.
18 Q. Did you rely upon both the standards and the principles as
19 well as the EEOC guidelines in developing the 1994 lieutenants
20 exam?
21 A. Yes.
22 Q. And you referred to all of them in your validation report?
23 A. Yes.
24 MR. HOLZHAUER: Your Honor, I'd like to have
25 Defendant's Exhibit 25 and 26 admitted into evidence. The
323
Barrett - direct
1 guidelines were admitted by stipulation. Mr. Flaxman has
2 objected on the grounds of relevance. And that was his only
3 objection. But Dr. Barrett's testimony that he relied on these
4 documents in preparing the exam I think demonstrates their
5 relevance.
6 MR. FLAXMAN: I think he's right.
7 THE COURT: Overruled. I mean, I don't have to
8 overrule it.
9 MR. FLAXMAN: My objections are withdrawn.
10 THE COURT: Okay. They'll be admitted.
11 MR. HOLZHAUER: Thank you.
12 (Defendant's Exhibits 25 and 26 received in evidence.)
13 BY MR. HOLZHAUER:
14 Q. Dr. Barrett, do these three documents describe strategies
15 for establishing the validity of examinations like the 1994
16 lieutenants exam?
17 A. Yes.
18 Q. What are the principal validation strategies?
19 A. There are three. One is construct validity.
20 Q. Can you tell us what that is?
21 A. This is the most complex. It basically means that you
22 identify a construct in a test. You identify a construct on
23 the job. And based on other evidence, and it could be from
24 other studies, you assume that the two constructs match, and,
25 therefore, you can use a test for the purposes of selection.
324
Barrett - direct
1 Q. What do you mean by "a construct"?
2 A. It's a hypothetical term we use. An example would be
3 intelligence, for example, is a construct in the field.
4 Q. Did you use any of these validation strategies in the
5 development of the lieutenants examination?
6 A. Yes.
7 Q. I'm sorry, I haven't gotten to the second one. I'm sorry.
8 A. The second one is criterion related.
9 Q. Okay.
10 A. And this is a process where you actually correlate test
11 scores with job performance. And there are two different types
12 of designs you can use under this heading of criterion related.
13 One is concurrent validation, where you take at the same point
14 in time present encumbents and give them a test, say, 100
15 sergeants, for example, give them a test at the same time you
16 obtain their job performance measures. When you correlate the
17 two together, you obtain a correlation coefficient. In our
18 field it's called a validity coefficient.
19 A second type of design under criterion related is
20 called predictive. And in the predictive approach you would,
21 say, take at random 100 people, test them, and then hire them
22 to be sergeants. And sometime later, a year or two later, you
23 would obtain their job performance. Again, you correlate the
24 test scores with job performance and see, in fact, the test was
25 valid.
325
Barrett - direct
1 Q. So in a sense, the predictive approach is like an
2 experiment?
3 A. Yes, it is.
4 Q. Do you pick the people who finish at the top of the exam to
5 go forward?
6 A. Well, if you actually did that, very top, you'd have what
7 would be called restriction of range. And it would be much
8 more difficult to obtain a correlation coefficient which was
9 significant.
10 Q. Dr. Barrett, can you tell us about the third strategy?
11 A. The third is called content validity. And this is really
12 also called content oriented approach to validation. It goes
13 to the process you go through. And the process is a judgmental
14 one, it's a rational process, and where you attempt to have
15 your test represent the important knowledges, skills and
16 behaviors which are in the job. A very simple example that's
17 often given is a typing test. That's the very simplest type of
18 content valid test.
19 THE COURT: A what test?
20 THE WITNESS: A typing test.
21 THE COURT: Typing.
22 THE WITNESS: Because you -- it's some part of work
23 sample.
24 BY MR. HOLZHAUER:
25 Q. Did you use any of these validation strategies in the
326
Barrett - direct
1 development of the lieutenants exam?
2 A. Yes.
3 Q. Which one?
4 A. We used content validity.
5 Q. Can you describe for us the steps in a content oriented
6 validation strategy?
7 A. The first step is a job analysis. And from job analysis,
8 which is a process, you write a job description. Job
9 description usually contains the major work behaviors for that
10 job. It often also contains some tasks which a person or
11 people do in that job.
12 For each major behavior, you then specify the
13 knowledges, skills, and abilities which allow the people in the
14 job to perform that major work behavior. Then you actually
15 develop your test following good professional procedures to
16 reflect and to tap the knowledge, skills and abilities you have
17 identified.
18 And the last thing you are to report, to document
19 that process.
20 Q. Are these -- now, did you follow these validation steps in
21 designing the 1994 lieutenants exam?
22 A. Yes.
23 THE COURT: I didn't follow the fifth point.
24 THE WITNESS: The fifth one, the very last one?
25 THE COURT: Yes. You said document.
327
Barrett - direct
1 THE WITNESS: Yes. The EEOC guidelines want you to
2 have a formal report where you at least say, all right, I did
3 perform a job analysis, here is a job description, here is what
4 I tested for.
5 THE COURT: All right.
6 BY MR. HOLZHAUER:
7 Q. I'd like to focus now a bit more directly on the work
8 you've done on the 1994 exam. To begin with, let me take away
9 those guidelines and principles. And I would like you to go to
10 the beginning of that book.
11 THE COURT: What book is that?
12 MR. HOLZHAUER: Plaintiffs' Exhibit -- Defendant's
13 Exhibit 1.
14 BY MR. HOLZHAUER:
15 Q. Can you tell me what that document is?
16 A. This is the fifth step I talked about. This is the actual
17 report that we generated to document the steps or the process
18 we used in the content and validity process. And its name --
19 the name of the report is Report on the Development and
20 Administration of a Promotional Process for the Job of Chicago
21 Police Lieutenant, October 10th, 1995.
22 MR. HOLZHAUER: That report has been entered into
23 evidence as Defendant's Exhibit 1 by stipulation, Your Honor.
24 BY MR. HOLZHAUER:
25 Q. Did you perform a job analysis for the 1994 exam?
328
Barrett - direct
1 A. Yes.
2 Q. Could you give us a brief overview of the job analysis
3 process that you went through for this exam.
4 A. We always first review the literature. And we had an
5 advantage this time, because we had just completed the
6 sergeants promotional examination where we had interviewed 28
7 lieutenants besides a large number of sergeants. So we had a
8 good understanding of the jobs in the Chicago Police
9 Department.
10 Q. Did you have any other advantage in doing this?
11 A. Yes, we did. We also had a report from HR Strategies, the
12 consulting firm I mentioned before, who could not meet the time
13 requirements of the City of Chicago.
14 So we had their job analysis report, which consisted,
15 I believe, of about 60 individuals, 60 lieutenants who had
16 been -- who had filled out, I believe, a questionnaire, a very
17 structured approach.
18 We began our job analysis on April 29th of 1994, and
19 it extended for a number of months. It involved interviews
20 with 45 lieutenants, 6 captains and a sergeant. We then wrote
21 a master job description, which is contained in this document
22 which contains the major work behaviors. That job description,
23 in effect, documents the job analysis process we went through.
24 Q. In addition to interviewing the lieutenants, did you
25 observe lieutenants on the job?
329
Barrett - direct
1 A. Yes. We observed lieutenants on the job. We also did
2 what's called ride-alongs.
3 Q. What are they?
4 A. That's where one of our job analysts actually rides in a
5 patrol car. We also had available to us reports, documents, et
6 cetera, which are routinely used by both sergeants and
7 lieutenants in Chicago. We obtained additional documentation
8 which we did not have which was germane to the job of police
9 lieutenant.
10 Q. Now, you had mentioned that you had already done a job
11 analysis for the sergeants exam. What use and relevance was
12 that in developing the lieutenants exam?
13 A. Well, it gave you -- gave our job analysts and myself a
14 framework, because we understood more of the structure of the
15 police department, we understood the sergeant's job. And we
16 had talked, as I mentioned before, to the 28 lieutenants, so we
17 knew how the two jobs interrelated.
18 Q. Dr. Barrett, I would like to show you a document that's
19 been marked Defendant's Exhibit 5. Again, I would like you to
20 put it on top of your other book. Can you tell us what that
21 document is?
22 A. This is a report by HR Strategies, City of Chicago,
23 Analysis of the Police Lieutenant Job for Chicago Police
24 Department, Job Analysis Technical Report, May 1994.
25 Q. Now, is this the HR Strategies job analysis that you just
330
Barrett - direct
1 testified that you had in your hands when you began your job
2 analysis?
3 A. Yes.
4 Q. Did you rely upon this job analysis in developing your test
5 and constructing your job analysis?
6 A. Yes.
7 Q. Did you review it thoroughly?
8 A. Yes.
9 Q. Did you discuss it at length in your report?
10 A. Yes.
11 MR. HOLZHAUER: Your Honor, I'd like to offer
12 Defendant's Exhibit 5 into evidence. Mr. Flaxman has objected
13 on the grounds of hearsay and relevance to that one. I believe
14 Dr. Barrett's testimony that he consulted and relied upon this
15 report in the development of his exam and his job analysis
16 demonstrates that it's relevant. I also believe that it's not
17 hearsay, because it's not offered for the truth of the matter
18 asserted.
19 MR. FLAXMAN: Could I have a page reference for where
20 it's referred to in Dr. Barrett's report before we -- I don't
21 need to voir dire him. I'll accept counsel's representation,
22 but --
23 THE COURT: Well, he's just testified to it. I'm
24 looking at page 81 of his report, and I'm looking for HR
25 Strategies as well. And I'm having trouble finding it. Maybe
331
Barrett - direct
1 it's there somewhere. Isn't that where you describe your job
2 analysis methods?
3 THE WITNESS: Yes. I would assume it would be
4 mentioned there. You're right, I don't see it either.
5 THE COURT: But it's your testimony that you did
6 consult it in preparing your job analysis?
7 THE WITNESS: Yes.
8 THE COURT: I'll accept it. It will be admitted.
9 (Defendant's Exhibit 5 received in evidence.)
10 MR. HOLZHAUER: Thank you, Your Honor.
11 BY MR. HOLZHAUER:
12 Q. Let me take that back.
13 Now, since you already had this current HR Strategies
14 job analysis, why did you do your own job analysis?
15 A. We wanted to be sure we could understand the job well
16 enough to develop our own tests. Though we had a basic
17 framework, we wanted to understand the job well enough to
18 develop tests which were very much tailored to the job of a
19 Chicago police lieutenant. And their descriptions were from a
20 questionnaire and were fairly structured. We used a
21 semi-structured approach in our process.
22 Q. Now, you mentioned earlier that you interviewed six
23 captains and a commander and not just lieutenants. Why didn't
24 you interview them?
25 A. Again, to get a perspective from the higher ranks of the
332
Barrett - direct
1 job of lieutenant.
2 Q. Are the names and ranks of the people who were interviewed
3 included in your report?
4 MR. FLAXMAN: Objection, there should be a foundation
5 that he knows who was interviewed.
6 THE COURT: I think this is -- overruled -- a fair
7 question.
8 BY THE WITNESS:
9 A. Yes.
10 BY MR. HOLZHAUER:
11 Q. Now, how did you select the individuals to be interviewed?
12 MR. FLAXMAN: Objection. That assumes that he
13 selected the individuals to be interviewed.
14 BY MR. HOLZHAUER:
15 Q. How did Barrett & Associates -- did Barrett & Associates
16 select the individuals to be interviewed?
17 A. No.
18 Q. Who selected them?
19 A. I'm not really sure at this point in time. It might have
20 been Commander Wedgebury. We had liaison individuals who we
21 made our requests to, and he was one individual I know we
22 worked with.
23 Q. What kind of request did you make of him? What did you ask
24 him for?
25 A. We wanted diversity in terms of the roles of lieutenant and
333
Barrett - direct
1 in terms of race and gender.
2 Q. And you made that request to the police department?
3 A. Yes.
4 Q. And the police department supplied those individuals or
5 supplied you a list of those individuals?
6 MR. FLAXMAN: Objection. He doesn't know. He knows
7 he got a list. He doesn't know whether they complied to his
8 request.
9 THE COURT: Do you know?
10 MR. FLAXMAN: Or to the extent to which they --
11 THE COURT: Well, ask him if he knows.
12 MR. HOLZHAUER: That will be the next question.
13 BY MR. HOLZHAUER:
14 Q. I asked you if he supplied you with a list and then that
15 list had the names on it. Did the list have those names on it?
16 A. Yes. We were supplied the list and, for example, on April
17 29, 1994, we had a list of people to interview.
18 Q. Do you know whether they complied with your request that it
19 be a list of people with diverse assignments in the police
20 department or diverse backgrounds?
21 A. Yes. We have in our report some information concerning the
22 race and gender composition of those individuals we
23 interviewed.
24 Q. Now, when you -- tell me how those interviews were
25 conducted.
334
Barrett - direct
1 A. We had a basic outline which we used, a structure. We
2 would follow that outline. But we also had a great deal of
3 interaction as a team, because there would be areas, for
4 example, we wouldn't understand why a lieutenant did certain
5 things.
6 So certain people might be asked to concentrate on
7 administrative issues, for example, why, what forms did a
8 lieutenant use, how did he use the forms. Someone else might
9 be asked to concentrate on what job knowledge is important for
10 certain work behaviors. And someone else might be asked to
11 concentrate on how was the oral communication between
12 lieutenant and subordinates and citizens.
13 Q. Now, you said, you used the word "structure." Did the
14 interviews --
15 MR. FLAXMAN: Objection.
16 BY MR. HOLZHAUER:
17 Q. -- use a script?
18 MR. FLAXMAN: He used the word "semi-structured."
19 And he distinguished --
20 MR. HOLZHAUER: I withdraw the question.
21 BY MR. HOLZHAUER:
22 Q. You used the word "semi-structured." Did the interviews
23 follow from a script?
24 A. Not exactly. The semi-structured means -- again, we have
25 the form in the report. But it means that we can deviate from
335
Barrett - direct
1 that basic structure. The basic structure usually is what are
2 your measured work behaviors, how often do you do this, what is
3 important, what is important.
4 And then as I said before, we want to deviate and go
5 down and concentrate on certain work behavior, one we wanted to
6 concentrate on where we might not understand fully what was
7 being done.
8 Q. Now, in addition to the interviews, you mentioned that you
9 observed lieutenants at work. How was that done?
10 A. The job analysts would actually go into the stations. They
11 would also have some ride-alongs.
12 Q. They also -- excuse me?
13 A. They'd have ride-alongs also.
14 Q. Okay. How did they -- what did those ride-alongs entail?
15 A. Well, again, you're just in a patrol car with the
16 lieutenant.
17 Q. Now, you also said that you reviewed documents and
18 directives. What documents did you review?
19 A. Basically every piece of paper which was important for a
20 lieutenant -- that the lieutenant would handle, review, we
21 reviewed. And that would also include documents which they
22 might rely upon for which they have certain knowledge. The
23 general orders, for example, were reviewed.
24 Q. How did you determine what documents are relevant to the
25 job of lieutenant or used by lieutenants?
336
Barrett - direct
1 A. Well, what you'd do is you often -- what we often did is
2 find out, here is some specific events. All right. Here is
3 what they told us what they did. They had a -- had to do a
4 spar, for example. What does that mean? What paper do you do?
5 How does the process work?
6 So we had basically it's what we often call critical
7 incidents to work for, here are events. What sort of
8 investigations do you have to do?
9 Q. So were these, these documents and papers gathered in the
10 course of your interviews then?
11 A. Well, we had most of them in our files because of our prior
12 work with the sergeant exam. Anything else we identified we
13 would ask for from the police department.
14 Q. Dr. Barrett, what is a master job description?
15 A. It's just our overall job description which we believe
16 captures the essence of that job. It contains the major work
17 behaviors and the underlying tasks. It also contains the
18 frequency and the importance.
19 Q. Did you prepare a master job description for the 1994
20 lieutenants exam?
21 A. Yes.
22 Q. Is that exam included in your report?
23 A. That description is in the report.
24 Q. I'm sorry. The description.
25 Did you take any steps to ensure that that master job
337
Barrett - direct
1 description after you prepared it was accurate and complete?
2 A. Yes. We had it reviewed by a number of people during the
3 course of our work, job analysis.
4 In fact, what we often did was take along a draft of
5 it, a working draft, and would ask individuals, is this
6 complete, what would you add, what would you delete, and so
7 forth.
8 Q. I'd like you to turn to appendix C of your report. What is
9 that, Dr. Barrett?
10 A. This is a job description for position of police
11 lieutenant, Chicago Police Department, 1994.
12 Q. Look at page C, pages C-3 through C-6. Can you tell us
13 what those are?
14 A. C-3 contains the individuals interviewed, the dates of the
15 interview. C-4 is the same material. C-5 are the people who
16 were included in the job analysis by HR Strategies, as I
17 recall, also C-6.
18 Q. Let's jump to C-8, what is C-8?
19 A. C-8 is the summary of the major work behaviors. It also
20 contains the major responsibilities.
21 Q. C-9?
22 A. This starts the major work behaviors. The first one being
23 monitors and supervises activities of police officers and
24 sergeants. Our frequency is about 65 percent, plus or minus 5
25 percent.
338
Barrett - direct
1 Q. What do you mean by that? This number one is one of the
2 major --
3 A. This is the first -- what they consider to be the most
4 important work behavior. We have -- our work behaviors are
5 ranked by importance.
6 In other words, most -- particularly in the safety
7 force, everything they do is important. But relatively
8 speaking, the first major work behavior, number one is the most
9 important.
10 Q. And what do you mean by this frequency, 65 percent plus or
11 minus 5?
12 A. We have a process in the job analysis where we ask how many
13 hours are spent on this activity by day, week, month? Is it
14 yearly? And it's an estimate from the job analysis.
15 Q. Now, when you say these are organized by importance, do you
16 mean they're organized by frequency?
17 A. No. I said by importance. In other words, the very first
18 one is the most important.
19 Q. Okay. You go on for several pages discussing this activity
20 number one. And then page C-13, I think it is, gets to
21 activity number two?
22 A. Yes.
23 Q. And that in your view would be the second most important
24 activity?
25 A. Yes.
339
Barrett - direct
1 Q. And what is the frequency of that activity?
2 A. That's 15 percent plus or minus 5 percent.
3 Q. And what is the first component of that, serves as the
4 watch commander when so designated activity?
5 A. You mean A?
6 Q. Yes.
7 A. "Conducts or directs roll call. Spends about 45 minutes
8 per day conducting roll call for two roll call sessions."
9 Q. Dr. Barrett, the master job description goes on for quite a
10 few more pages and discusses other activities. And then on
11 page C-24 there is something called -- can you tell us what
12 that is on page C-24?
13 A. This is the Chicago police lieutenant list of knowledge,
14 skills, and abilities.
15 And what we have is under each major work behavior
16 what we believe to be the knowledge required to perform that
17 major work behavior. And the first one, for example, we go
18 through associated knowledge on C-25. We indicate how it is
19 acquired. C-25 looks at skills. C-26 looks at how these
20 skills are acquired. C-26 also has associated abilities. And
21 C-27 continues on how they are acquired.
22 Q. Let me break this down.
23 A. We go through the document that way.
24 Q. Let me break this down a little bit.
25 Number one, "Monitors and supervises the activities
340
Barrett - direct
1 of police officers and sergeants." That was the same number
2 one of the previous part of the document, the master job
3 description?
4 A. Yes.
5 Q. Then here is the knowledge associated with that activity
6 starting on that page, C-24.
7 C-25 is how that knowledge was acquired?
8 A. Yes.
9 Q. And starting at the bottom there is associated skills?
10 A. Yes.
11 Q. C-26 is how those are acquired.
12 And then associated abilities?
13 A. Yes.
14 Q. What's the distinction between abilities and skills?
15 A. Skills are often more psychomotor in nature.
16 Q. And then I notice in C-28 you get to number two. That's
17 the second frequency item on your -- or second major item in
18 your major job description, is that correct?
19 A. Yes.
20 Q. Now, you heard Mr. Joyce refer to something as KSAs. Are
21 these knowledge, skills and abilities known as KSAs in your
22 field?
23 A. Yes.
24 Q. How is this list of KSAs developed?
25 A. They're developed from the job analysis, from our past
341
Barrett - direct
1 experience working in police departments and from our review of
2 the literature.
3 Q. What is the purpose of the list of knowledge, skills and
4 abilities?
5 A. It basically makes it clear what you are doing in terms of
6 safety, what knowledge you want to tap for. This allows you to
7 say like, this knowledge is related to this major work
8 behavior, and if I develop a test which measure or taps that
9 knowledge, it's going to be relevant. There is a one-to-one
10 match. There is a judgment being made about that.
11 Q. Did you take any steps to ensure that this was a complete
12 and accurate list of knowledge, skills, and abilities for the
13 job of Chicago police lieutenant?
14 A. We had, again, this material reviewed by SMEs.
15 Q. SMEs?
16 A. Subject matter experts.
17 Q. Who were they?
18 A. They would be people in the police department who are
19 knowledgeable about the activities and the work behaviors of
20 the police lieutenant.
21 Q. Was there a reading list provided to candidates that took
22 this exam?
23 A. Yes.
24 Q. You mentioned earlier that you reviewed a number of
25 documents and materials in preparation of the list -- the
342
Barrett - direct
1 master job description and the KSAs, is that correct?
2 A. Yes.
3 Q. Was this list of reading materials taken from that quantity
4 of documents that you reviewed?
5 A. Yes.
6 Q. Were all of those materials that you reviewed included in
7 the list?
8 A. No. We went through an interactive process. As I recall,
9 it probably started in May, of interviewing about 11
10 lieutenants to help us develop a source list. So it's an
11 interactive process again.
12 We'd say, all right, let's look -- is this document,
13 for example, important? Does this contain the knowledge
14 required by a Chicago police lieutenant? And that process
15 evolved until we had a final list, which was reviewed by a
16 panel. I believe it was Commander Wedgebury, Captain Minogue,
17 I believe, perhaps Lieutenant Schrader, who reviewed the list
18 and said, all right, this is the list which we think is good.
19 It reflects the knowledge which the Chicago police lieutenant
20 should have to perform the major work behaviors.
21 Q. Did those -- the officers on that panel or that panel as a
22 whole make any recommendations for deletions or additions to
23 that list?
24 A. Yes, they did.
25 Q. Did anyone from the department conduct a final review of
343
Barrett - direct
1 that reading list?
2 A. Yes.
3 Q. Do you recall who that was?
4 A. It would be Lieutenant Klein.
5 Q. Did Lieutenant Klein make any recommendations for additions
6 or deletions of the list at that point?
7 A. Yes.
8 Q. Did you follow those recommendations?
9 A. Yes.
10 Q. I'd like to show you --
11 MR. FLAXMAN: Before we go on, could we have an
12 additional foundation as to when this happened before we move
13 on? When he followed Klein's recommendations?
14 BY MR. HOLZHAUER:
15 Q. Do you recall, Dr. Barrett, when Dr. Klein -- when
16 Lieutenant Klein reviewed your list?
17 A. No.
18 Q. Do you recall maybe when it fit in the process?
19 A. Well, it was an interactive process. But for some reason,
20 I recall around September 9th of 1994 the list was posted, I
21 believe, the reading list was given out, I believe. So it
22 would be sometime before that date.
23 Q. Thank you.
24 I'd like to show you a document that's been marked
25 Defendant's Exhibit 20. Can you tell us what that document is?
344
Barrett - direct
1 A. This is the Chicago Police Lieutenant Promotional
2 Examination Reading List of September 12th, 1994.
3 Q. Was this a reading list provided to candidates who took
4 this examination?
5 A. Yes.
6 MR. HOLZHAUER: Your Honor, I'd like to move
7 Defendant's Exhibit 20 into evidence. Mr. Flaxman has objected
8 on the grounds of relevance, but I think the relevance is well
9 established.
10 MR. FLAXMAN: I have no objection.
11 THE COURT: It will be admitted.
12 (Defendant's Exhibit 20 received in evidence.)
13 THE COURT: Is it different than 12, appendix 12?
14 MR. HOLZHAUER: I'm not sure if it is, Your Honor.
15 Appendix 12?
16 THE COURT: It was referred to earlier.
17 MR. HOLZHAUER: Both copies bear Bates number 234.
18 It's the same document. It's already in evidence.
19 MR. FLAXMAN: No, Defendant's 1.
20 THE COURT: Well, it looks like --
21 MR. HOLZHAUER: It's in as -- yes, it's in as
22 appendix F.
23 THE COURT: -- Exhibit 20 is incorporated in part of
24 Exhibit 12. The first two pages look to be different. Okay.
25 So it's already in.
345
Barrett - direct
1 BY MR. HOLZHAUER:
2 Q. Okay. Now that you have the master job description, the
3 list of knowledge, skills, and abilities, and the reading list,
4 was that the end of your job analysis phase?
5 A. Basically, yes.
6 MR. FLAXMAN: Let me object. I don't think he said
7 anything that this was part of the job analysis phase. I think
8 he's mischaracterizing his testimony. We have a job analysis
9 phase, then we have a reading list. But I don't know if the
10 two are the same process, which is why --
11 MR. HOLZHAUER: I'll clarify that if you wish.
12 BY MR. HOLZHAUER:
13 Q. Was the development of the reading list part of your job
14 analysis phase?
15 A. It built -- we couldn't have a reading list which we could
16 verify if we hadn't performed a job analysis, that's correct.
17 Q. At this stage, was your job analysis complete?
18 A. Yes.
19 MR. FLAXMAN: Could I object? At what stage? I'm
20 confused.
21 THE COURT: I'm not.
22 MR. FLAXMAN: Well, perhaps all three of us should be
23 on the same page then. I'm not playing games, Judge. I just
24 am really confused about whether the reading list was after the
25 job analysis, which is what I think he said. But I'm not sure.
346
Barrett - direct
1 THE COURT: That's exactly what he said.
2 MR. FLAXMAN: All right.
3 THE COURT: He does the job analysis and he does the
4 reading list.
5 Now, is it all done, is the job analysis all done at
6 the time you did the reading list? Dr. Barrett, I'm asking you
7 a question.
8 THE WITNESS: Oh, yes.
9 MR. FLAXMAN: Thank you.
10 BY MR. HOLZHAUER:
11 Q. Dr. Barrett, are you satisfied that the job analysis that
12 you conducted was thorough and comprehensive?
13 MR. FLAXMAN: Objection. Whether he's satisfied or
14 not is not relevant.
15 THE COURT: He can tell me whether he was satisfied.
16 Wouldn't you be surprised if he said no?
17 Were you, Doctor?
18 THE WITNESS: Yes, I was very satisfied, yes.
19 BY MR. HOLZHAUER:
20 Q. How did you get from this job analysis to the actual test
21 battery?
22 MR. FLAXMAN: Objection. That assumes that he went
23 from the job analysis.
24 BY MR. HOLZHAUER:
25 Q. Did you use this job analysis to create the actual test
347
Barrett - direct
1 battery?
2 A. Yes.
3 Q. How did you do that?
4 A. We have our major work behaviors. We have the associated
5 knowledge, skills and abilities. And now you say: What is the
6 best professional way to develop a test which is going to
7 measure those knowledge, skills and abilities which are
8 relevant to the job?
9 Q. What were the components of the test battery?
10 A. There were three components. The first one we gave was the
11 oral component. The second was the written job knowledge test.
12 And the third was the in-basket test.
13 Q. Were they designed to test something different, each of
14 them?
15 A. Yes.
16 Q. What were they designed to test?
17 A. The oral test was designed to test the oral communication
18 skills required by a police lieutenant.
19 The job knowledge test was designed to test the
20 underlying job knowledge which is required to perform the major
21 work behaviors.
22 And the in-basket was designed to test the
23 administrative parts of the job.
24 Q. Dr. Barrett, before we get into the three exam components
25 in more depth, were you here for Mr. Bishop's testimony
348
Barrett - direct
1 yesterday?
2 A. Yes.
3 Q. Did you hear him testify about the possibility of using an
4 integrity test?
5 A. Yes.
6 Q. Did you consider using an integrity test as part of this
7 examination?
8 MR. FLAXMAN: I'm speechless. I object because --
9 THE COURT: That would be a first, Mr. Flaxman.
10 MR. FLAXMAN: That's weird. Nobody is proposing that
11 we have an integrity test or that they should have done an
12 integrity test. That's not an issue in the case. It's not
13 material.
14 MR. HOLZHAUER: I believe Mr. Bishop said that he
15 thought that the test should be a test of integrity.
16 MR. FLAXMAN: We did not present Mr. Bishop to give
17 us a new way of testing.
18 THE COURT: All right. You're withdrawing any such
19 implication?
20 MR. FLAXMAN: That's correct.
21 THE COURT: Okay. Let's move on.
22 BY MR. HOLZHAUER:
23 Q. Did you also hear Mr. Bishop testify that it might have
24 been better to have an essay exam, Dr. Barrett?
25 A. Yes.
349
Barrett - direct
1 Q. Did you consider using an essay exam as one of the
2 components of this exam?
3 A. Yes.
4 Q. Why didn't you do that?
5 A. For a number of reasons. First, essay exams are not
6 reliable. Second, they're very time consuming. And third,
7 they may actually have more adverse impact than other types of
8 examinations.
9 Q. Do you think essay exams capture something that's not
10 captured by multiple-choice exams?
11 A. In certain situations it can, yes.
12 Q. And what's that?
13 A. If perhaps -- not for a job of lieutenant perhaps -- but
14 for perhaps creative writing, for example, would be captured by
15 that.
16 But our general studies indicate that multiple-choice
17 tests and essays tend to measure the same thing. ETS has done
18 a number of studies on this and finds very high correlations
19 between multiple-choice tests and essay examinations.
20 Q. Dr. Barrett, which component of the exam did you prepare
21 first?
22 A. The oral.
23 Q. Was that also administered first?
24 A. Yes.
25 Q. Do you recall when it was administered?
350
Barrett - direct
1 A. June 1st of 1994.
2 Q. Why was it administered before the other components?
3 A. As I said before, the City of Chicago had enormous time
4 constraints. And this is the component that we could develop
5 the fastest.
6 Q. Dr. Barrett, I'd like to show you a document that's been
7 marked Defendant's Exhibit 16. Can you tell me what that is?
8 A. This is a police lieutenant oral examination of Wednesday,
9 June 1st, 1994.
10 THE COURT: Are we done with Exhibit 1?
11 MR. HOLZHAUER: Your Honor?
12 THE COURT: Are we done with Exhibit 1 for now?
13 MR. HOLZHAUER: I think we'll come back to Exhibit 1,
14 Your Honor.
15 THE COURT: Soon?
16 MR. HOLZHAUER: Relatively soon, yes, sir.
17 BY MR. HOLZHAUER:
18 Q. That was the oral briefing exercise?
19 A. Yes.
20 MR. HOLZHAUER: That has been admitted into evidence
21 by stipulation, Your Honor.
22 BY MR. HOLZHAUER:
23 Q. Was there a particular subset of the KSAs that the oral
24 briefing exercise was addressed to test?
25 A. You mean a subset in terms of beyond all communication
351
Barrett - direct
1 skills?
2 Q. Yes.
3 A. We looked at -- in terms of analysis, organization, and
4 oral communication were three main dimensions which we would be
5 tapping.
6 Q. Could you briefly describe the oral exercise, including the
7 material given to the candidates and how the test was
8 administered and scored?
9 A. Yes.
10 This was a structured approach we used where everyone
11 would have exactly the same materials. They were given
12 materials to review about gangs. They were given very explicit
13 instructions about what sort of oral briefing they were to do.
14 They read the material for 25 minutes, and then they were
15 instructed to give a briefing, which would last no more than
16 ten minutes, with the optimum time being between five and seven
17 minutes. They gave the briefing into three tape recorders.
18 There was a monitor in the room, but there was no
19 interaction between the monitor and the candidate. It was a
20 very structured process in the sense that we had tapes, which
21 they broke the seal on. They put on their test identification
22 number. The tapes were, after the end of the administration
23 process, they were released.
24 Now, security was an important part of the process.
25 So we had three parallel forms, X, Y, and Z. They were
352
Barrett - direct
1 constructed so that the words were exactly the same, the
2 syllables, the content, except critical material was changed.
3 So if the first group of people who took form X would tell
4 people who were going to take form Y, it would be no help to
5 them.
6 So the process, the administration process was
7 designed so there would be no overlap of people taking form X.
8 They couldn't tell anybody anything, and same with Y and Z.
9 After the process was completed, then the tapes were
10 brought back, one of the tapes was brought back to our offices
11 in Akron, Ohio. And there we had trained three raters, who
12 rated the tape following a very structured approach again.
13 They would sit and listen to the tape, make independent
14 ratings. Then if there were any inconsistencies in the
15 ratings, they would reach a consensus and often go back and
16 review the tape to see if -- who was accurate or correct in the
17 judgments.
18 The tapes were scored, entered into the computer, and
19 that was their scores for the -- that part of the examination
20 process.
21 THE COURT: Wait. You said one copy of the tapes
22 went back there or all three?
23 THE WITNESS: No, one, because, I believe, our
24 process was that two copies went to Arthur Andersen. Arthur
25 Andersen was in charge of administration of all the tests.
353
Barrett - direct
1 THE COURT: All right. But the only scoring was done
2 by your organization?
3 THE WITNESS: For this, yes.
4 BY MR. HOLZHAUER:
5 Q. Dr. Barrett, did anyone from the police department review
6 the oral briefing exercise in advance to determine its accuracy
7 and relevance?
8 A. Yes.
9 Q. And who conducted that review?
10 A. Chief Cadogan and Lieutenant Klein came to our offices in
11 Akron, Ohio sometime in the middle of May. And they actually
12 went through the exercise itself and gave us very helpful
13 feedback.
14 Q. Did they recommend any changes based upon their review?
15 A. Yes.
16 Q. Did you make those changes?
17 A. Yes.
18 Q. Dr. Barrett, did you administer a pilot test of the oral
19 briefing exercise?
20 A. Yes.
21 Q. Who took the pilot test?
22 A. We had 29 individuals take the pilot test. There were 23
23 whites, two black, two Hispanics, two Asian-American.
24 Q. Who were they? Were they Chicago police officers or what?
25 A. They were graduate students who signed a confidentiality
354
Barrett - direct
1 agreement. We knew that security was very, very important, and
2 so we only used people who had no contact with Chicago or the
3 Chicago Police Department in our pilot testing.
4 Q. Were those pilot tests actually scored?
5 A. Yes, they were.
6 Q. And how was that done?
7 A. Again, we had the team of three individuals score the test.
8 Q. What was the purpose of doing a pilot test?
9 A. The basic purpose was to be sure that our procedures were
10 correct, that there were no flaws in anything we were doing.
11 And also to be sure that we could reliably score the oral
12 component, because the pitfall of the oral -- and it's being
13 criticized as being unfair because it's not reliable. People
14 obtained different scores according to who the rater is.
15 Q. Okay. Now, you've mentioned those raters several times.
16 Were those raters trained in any way?
17 A. Yes.
18 Q. How were they trained?
19 A. Our whole --
20 Q. Let me take a step back.
21 Who were they?
22 A. They were employees of Barrett & Associates.
23 Q. How were they trained?
24 A. They were trained -- first, we had a general diversity
25 training workshop. And then we had a specific training
355
Barrett - direct
1 workshop on how to rate the tapes, which included comparing the
2 correct scores and so forth.
3 Q. Did you use the pilot tests to test the reliability of
4 those raters?
5 A. Yes.
6 Q. And were those the same raters who were going to rate the
7 actual exercise exam eventually?
8 A. Yes.
9 Q. Did the pilot test takers critique the exam?
10 A. Yes.
11 Q. Did you make any changes as a result of the pilot exam?
12 A. If they were, they were very minor changes.
13 Q. Dr. Barrett, why did you have the candidates speak into a
14 tape recorder and microphone rather than have the raters listen
15 to them directly?
16 A. Again, it's an issue of reliability, because the tape
17 recorder, we can play back the briefing communication and
18 detect if there were any errors. So the raters, the three
19 raters can, in fact, play back the tape and determine what is
20 accurate.
21 Q. Was the oral briefing exercise designed as a direct test of
22 how officers would actually prepare for and conduct a roll
23 call?
24 A. No.
25 Q. If it were shown that many lieutenants do not synthetize
356
Barrett - direct
1 materials in order to do a roll call, but instead simply read
2 announcements or materials from a journal or book that have
3 been given to them by the Chicago Police Department, would that
4 mean in your view that this oral briefing exercise was
5 inappropriate?
6 MR. FLAXMAN: Objection. We're asking for an
7 opinion. I don't know what the basis for the opinion is.
8 Inappropriate for what?
9 MR. HOLZHAUER: The basis of the opinion, Your Honor
10 is --
11 THE COURT: Overruled.
12 BY THE WITNESS:
13 A. No.
14 BY MR. HOLZHAUER:
15 Q. Why not?
16 A. The oral briefing exercise is a test. It's an exemplar of
17 oral communication. It was a good exemplar, a good test,
18 because it had face validity also, because lieutenants do at
19 times conduct roll calls.
20 Q. Did the oral briefing exercise test for knowledge, skills
21 and abilities that a lieutenant has to know to be effective on
22 the job?
23 A. Yes.
24 Q. Now, again, on the oral briefing exercise, did you attempt
25 to link particular knowledge, skills and abilities that you
357
Barrett - direct
1 identified during the job analysis with elements of the oral
2 briefing exercise?
3 A. Yes.
4 Q. What did that linkage consist of?
5 A. Well, just from the job analysis alone, it's very obvious
6 that oral communication is important for a police lieutenant.
7 He or she interacts continually with subordinates, superiors
8 and the public. They have to listen, obtain information,
9 communicate a variety of things to the public.
10 Q. Are there tables reflecting the linkage analysis in your
11 report?
12 A. Yes.
13 MR. HOLZHAUER: I'd like to turn to appendix H of
14 Exhibit 1, Your Honor.
15 THE COURT: We're going to have to break in a few
16 minutes.
17 MR. HOLZHAUER: This will be very short.
18 THE COURT: Pick a good spot.
19 Page what?
20 MR. HOLZHAUER: Appendix H.
21 BY MR. HOLZHAUER:
22 Q. Can you tell us what that is?
23 A. This is the Chicago police lieutenant oral briefing
24 exercise dimensions. It's a dimension linkage table where in
25 the first column it has the dimensions of analysis,
358
Barrett - direct
1 organization, oral communication.
2 In the second column is how we define what we mean.
3 We indicate the ability we're tapping. We have in the fourth
4 column the related major work behaviors. And the last column,
5 the right-hand column, has the rationale.
6 Again, it's almost gilding the lily you might say,
7 because clearly a police lieutenant has to communicate.
8 Q. Were you able to link all of the elements of the oral
9 briefing exercise to the major work behaviors and knowledge,
10 skills and abilities?
11 A. Yes.
12 Q. Now, you mentioned that the candidates had a certain period
13 of time to review the oral briefing exercise?
14 A. To review papers, yes, to prepare themselves.
15 Q. How long was that?
16 A. 25 minutes.
17 Q. And how long did they have to make their presentations?
18 A. Ten minutes.
19 Q. How did you decide upon those times?
20 A. From our past experience and from the feedback received
21 from Chief Cadogan and Lieutenant Klein, in their review
22 process they suggested we cut down some of the material to be
23 reviewed and increase the time for the review or analysis to
24 prepare their briefing. So we did that.
25 So these are on the past experience plus the feedback
359
Barrett - direct
1 from the experts.
2 Q. So the subject matter experts reviewed that timing?
3 A. Yes.
4 Q. And made changes?
5 A. Increased the time, yes.
6 Q. Now, how was the oral briefing exercise scored?
7 THE COURT: We have to break.
8 MR. HOLZHAUER: Right now?
9 THE COURT: We'll pick it up tomorrow.
10 9:30 tomorrow.
11 MR. HOLZHAUER: 9:30.
12 Thank you, Your Honor.
13 (Discussion off the record.)
14 (Adjournment at 5:50 p.m. until 9:30 a.m. November 20,
15 1997.)
16
17
18
19
20
21
22
23
24
25
part 3
Main