1 IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
2 EASTERN DIVISION
3
ERNEST T. BROWN, ) DOCKET NO. 95 C 1890
4 )
Plaintiff, )
5 )
vs. )
6 )
CITY OF CHICAGO, ) Chicago, Illinois
7 ) February 9, 1996
Defendant. ) 9:00 a.m.
8
TRANSCRIPT OF PROCEEDINGS
9 BEFORE THE HONORABLE ROBERT W. GETTLEMAN
10 APPEARANCES:
11 For the Plaintiff: MR. KENNETH N. FLAXMAN
122 South Michigan Avenue
12 Suite 1850
Chicago, Illinois 60603
13
14 For the Defendant: MR. PATRICK J. ROCKS, JR.
MR. MICHAEL A. FORTI
15 MS. SHONA B. GLINK
30 North LaSalle Street
16 Chicago, Illinois 60602
17
18
19
20 WANDA L. BARNES
Official Court Reporter - U.S. District Court
21 219 S. Dearborn Street
Room 1918
22 Chicago, Illinois 60604
(312) 435-5568
23
* * * * * *
24
25
2
1 THE COURT: Good morning, everybody.
2 THE CLERK: 95 C 1890, Ernest Brown v. the City of
3 Chicago, for hearing.
4 MR. FLAXMAN: Good morning, Your Honor. Kenneth
5 Flaxman for plaintiff.
6 MR. ROCKS: Good morning, Your Honor. Patrick Rocks
7 for the defendant.
8 Your Honor, I have a preliminary matter that I would
9 like to raise. There seems to be some intention on the part of
10 Mr. Flaxman to condense the proceedings today into some sort of
11 a summary judgment motion and ask the court for a final
12 permanent ruling on the merits of this case. We of course
13 object to that, in the first instance because we have not had
14 an opportunity given the way the case has evolved over the last
15 few days to conduct discovery on these new issues that
16 developed and to prepare defenses to those. If I am
17 misunderstanding Mr. Flaxman's position, I would very happily
18 be corrected.
19 THE COURT: Mr. Flaxman.
20 MR. FLAXMAN: We are seeking, asking the court to
21 take full advantage of rule 65, which, as we all know, says
22 that before or after, during a hearing on an application for a
23 preliminary injunction the court may consolidate. I think this
24 is certainly a question that the court will be in a better
25 position to answer after you've heard what the evidence is.
WANDA L. BARNES, CSR, RPR
3
1 THE COURT: Well, I think it's fair for everybody to
2 know what game we're playing here before we start the game and
3 I think that it's only fair for me to tell you that I am not
4 intending for this to be a final hearing or a hearing on
5 preliminary -- or hearing on anything but preliminary
6 injunction today. I'm not prepared for it. I don't think the
7 parties are prepared for it. I don't think the record is such
8 that it will be proper to entertain a final ruling. I noticed,
9 Mr. Flaxman, that you're -- the motion you filed did mention
10 the subject and the proposed findings you filed assumed the
11 subject, but I think we should concentrate today on the
12 preliminary injunction and proceed on that basis.
13 We have a motion for summary judgment scheduled. The
14 response isn't due until next month.
15 MR. ROCKS: That's right.
16 THE COURT: So I don't have 12(n)'s or anything else.
17 So I'm not going to entertain a final or any proceedings geared
18 to a final judgment today. So let's proceed.
19 There is one other thing, too. I had asked the
20 parties if they could provide me with an agreed statement of
21 facts, witness list, exhibit list. I did get Mr. Flaxman's
22 proposed findings. I don't know which ones of those -- I could
23 guess which ones the City doesn't agree to it, but there may be
24 some that the City does agree to or would want to add, and it's
25 a great help to the court to have at least such agreement on
WANDA L. BARNES, CSR, RPR
4
1 the facts and the conclusions as the parties can draw before
2 these things start. I'm certainly going to want them before I
3 rule. So please keep that in mind, too.
4 With that I'm just going to let you guys and ladies
5 go ahead and present your evidence for the preliminary
6 injunction hearing.
7 MR. ROCKS: Thank you.
8 MR. FLAXMAN: Another preliminary matter is that we
9 have agreed that there will be no sequestration of witnesses at
10 this hearing.
11 THE COURT: Good.
12 MR. FLAXMAN: Your Honor indicated a desire for
13 opening statements and I think we're prepared to --
14 THE COURT: I think it would be helpful, Mr. Flaxman.
15 Thank you.
16 MR. FLAXMAN: Even though the court has limited this
17 to a hearing on a preliminary injunction, what's before the
18 court is whether minorities will be excluded from the upper
19 echelons of the Chicago Police Department for the next 10 or 15
20 years.
21 This case involves promotions to lieutenant in the
22 Chicago Police Department. The evidence I think will be
23 unrebutted and it will come from I believe probably the
24 superintendent that the lieutenant -- the role -- the rank of
25 lieutenant is the entry level upper management position. The
WANDA L. BARNES, CSR, RPR
5
1 police department has police officers who are sworn personnel,
2 police officers, there are about 12,000 of them, supervised by
3 sergeants. Sergeants are supervised by lieutenants. There are
4 about 250 lieutenants. The higher levels of the police
5 department are selected from among the lieutenant work force.
6 In the history of the Chicago Police Department there
7 have been two exceptions which I think are viewed as abhorrent
8 exceptions where somebody who was not a lieutenant became a
9 higher ranking person. And you're going to hear I think that
10 everybody, district commanders, deputy chiefs, assistant deputy
11 chiefs, assistant deputy superintendent, the superintendent,
12 are all lieutenants or the rank of captain, which is a rank
13 that the City is phasing out.
14 In 1977 minorities -- and by minorities I'm referring
15 to African-Americans and Hispanics -- made up about nine
16 percent of the lieutenant work force. There was litigation in
17 a case called Bigby v. City of Chicago which we'll be relying
18 on for having established the legal standard applicable to
19 these types of proceedings. Bigby forced the City to promote
20 more minorities.
21 In 1994, before any promotions were made from this
22 list, the percentage of minorities, African-Americans and
23 Hispanics, in the lieutenant work forced increased to about 23
24 percent. And I think you will hear testimony from the
25 superintendent that it's good for the police department that
WANDA L. BARNES, CSR, RPR
6
1 the higher echelons be diverse, that it not be all of one race
2 and that it mirror the work force of the lower ranks.
3 Now, the City of Chicago has to date made 54
4 promotions from the 1994 promotional roster, the roster that's
5 at issue in this case. 51 of those promoted were white. Now,
6 there have been retirements. There might have been one or two
7 deaths. But as a result of these promotions and attrition, the
8 percentage of African-American and Hispanic lieutenants has
9 gone down from 23 or 24 percent to about 19 percent.
10 The City now wants to make another 54 promotions, and
11 51 of those whom the City plans to promote, that's about 95
12 percent, are white. If the City is allowed to go ahead with
13 these promotions, the representation, the percentage of
14 African-American and Hispanic police lieutenants will go down
15 to about 14 percent. And this diminished percentage will be
16 reflected in the future because we're promoting -- the City
17 plans to promote people who are in their 40s who have 10 or 15
18 years to go and they're going to stay on the job and they're
19 going to get promoted.
20 So this is just not about 18 promotions or 54
21 promotions. This is about the future. This is about the next
22 10 or 15 years of the highest ranks of the Chicago Police
23 Department.
24 And when I throw these numbers out and these
25 percentages out, I think that if we haven't yet formally agreed
WANDA L. BARNES, CSR, RPR
7
1 as to what the numbers are, we will be formally agreeing. I
2 don't think there is a dispute in this case about how many
3 lieutenants there are or how many are being promoted or plan to
4 being promoted.
5 One of the other things about which there is no
6 dispute in this case is that the promotion roster from which
7 the City seeks to make promotions has a gross disparate impact
8 on African-Americans and Hispanics. That's been agreed to by
9 the City and is not something that is -- that anybody disagrees
10 with as a party to this lawsuit.
11 This case is before you under Title VII of the Civil
12 Rights Act of 1964. Under Title VII as it's been interpreted
13 by the Supreme Court in Griggs v. Duke Power Company and the
14 progeny of Griggs, once the plaintiff has shown that an
15 employment selection procedure has a disparate impact, the
16 plaintiff has made out a prima facie case. The burden then
17 shifts to the employer to demonstrate that the test is -- and
18 there is language that comes out of Albermarle Paper Company v.
19 Moody, that the test is -- the results of the test are
20 predictive of or significantly correlated with important
21 elements of work behavior which comprise or are relevant to the
22 job or jobs for which the candidates are being evaluated.
23 And that's the employer's burden to make that
24 showing, and among the lawyers who do this kind of thing,
25 that's -- the shorthand for that is the City has to show that
WANDA L. BARNES, CSR, RPR
8
1 the test is valid. And valid is a term of art for industrial
2 psychologists that you might hear from some of the industrial
3 psychologists that -- you might hear more about validation than
4 you thought you could possibly hear about it in your career on
5 the bench.
6 Once the validation issue -- and there are two
7 validation issues when a test is used like this one for rank
8 order selection. The City has to show that the test is valid,
9 that it measures the qualities of the job, and the City also
10 has to show that there is some justification for its scoring
11 system.
12 In the Bigby case Judge Marshall adopted the standard
13 that the employer is required to come forward with empirical
14 evidence to show that higher scores on the test means that
15 somebody will do better on the job; and in the Bigby case, the
16 City admitted it did not have that evidence.
17 In this case plaintiffs believe that the evidence
18 will likewise show that the City does not have any empirical
19 evidence that you get a higher score on this test, you're going
20 to do a better job as a lieutenant.
21 The City might present some other arguments to
22 support the opinion that getting a higher score on the test
23 means that you're going to do better on the job, but we believe
24 that if the court evaluates that opinion under the Dorbare
25 standard, which I probably mispronounced, you will see that
WANDA L. BARNES, CSR, RPR
9
1 that's not the kind of opinion that's even admissible. It's
2 just the kind of sincerely-held beliefs which lack provable
3 basis in the application of the test applied to a police
4 sergeant.
5 Title VII and disparate impact law also has another
6 twist to it, which is that even if the City or the employer
7 could show that a test is valid -- that the scoring system is
8 valid, the employee can still win or the applicant can still
9 win by showing that there is an equally valid less
10 discriminatory alternative that was available to the employer
11 that the employer chose not to use or that the employer was
12 unable to use.
13 That's where the testimony, the live witness
14 testimony in this case will start, and that's not because
15 that's the most important part of the case; it's because the
16 witnesses who are going to testify to that are Glenn Carr, the
17 commissioner of the Department of Personnel of the City of
18 Chicago, and the superintendent, Superintendent Rodriguez. We
19 want to get them on and get them out to the other things they
20 do.
21 What they're going to tell you is that after the City
22 received the results from this test -- and you're going to hear
23 that the city was not involved in making this test. The City
24 hired a consultant to make up this test. And when the City got
25 the results of this test and realized what was going to happen,
WANDA L. BARNES, CSR, RPR
10
1 that so few minorities were going to be promoted, the City
2 conducted its own investigation of some alternative to making
3 all the promotions in rank order from this list. And what the
4 city came up with is what's been referred to as merit
5 selection.
6 And I think you're going to hear from Superintendent
7 Rodriguez that he thought that was a good way to select people
8 to be promoted, that there was a system put into place to
9 select people who for whatever reason did not do well on paper
10 and pencil tests, but who had demonstrated that they would do
11 well in supervisory positions, and he proposed and Commissioner
12 Carr agreed that promotions could be made -- in addition to the
13 rank order promotions from the list, promotions could be made
14 on this merit selection basis.
15 And the evidence will show you, I think, that was an
16 equally valid, less discriminatory alternative. And the
17 evidence will come for that not just from Commissioner Carr and
18 Superintendent Rodriguez, it will come from admissions that the
19 City made in litigation in state court. And that litigation in
20 state court achieved a ruling that under state law the City's
21 hands were tied; it could not use an equally valid, less
22 discriminatory alternative.
23 We are in federal court. Federal law trumps state
24 law on this issue, and the fact that merit promotions
25 contravene state law does not impair or impede the duty of this
WANDA L. BARNES, CSR, RPR
11
1 court to remedy a violation of Title VII.
2 There is more to this case -- there is more to this
3 equally valid, less discriminatory alternative than rank order
4 selection. We're going to come forward with evidence, before
5 11:30 I hope, to show that there is a substantial likelihood
6 that we will succeed on our challenge to the validity of the
7 test, that we will be able to show when we get to the trial on
8 the merits that the test is not job related, that it does not
9 measure the entire content of the job, that the aspects of the
10 test do not reflect what police officers do.
11 And we'll also show you that there is an important
12 dimension of the job of lieutenant that was developed in a job
13 analysis performed for the City that's not measured or tapped
14 at all by this test. And what we're going to be focusing on in
15 that is the ability to write clearly and concisely, which is
16 not -- which we believe the evidence will show is not measured
17 on this test; this test was multiple choice test and oral
18 presentation -- and the ability to listen, to listen to other
19 police officers and to listen to citizens.
20 We believe the evidence will show that the City's job
21 analysis and common sense and SME -- that's another phrase that
22 comes up in these cases. SME is an acronym for subject matter
23 expert, and a subject matter expert is somebody who knows about
24 policing who is a police officer or a police lieutenant or a
25 high-ranking police official.
WANDA L. BARNES, CSR, RPR
12
1 These subject matter experts are going to tell you
2 that, yeah, the ability to listen is important to what a
3 lieutenant does; and the City's reports will show you that that
4 element of the job, that dimension of the job isn't measured in
5 the test. And we're going to have some evidence about the test
6 and how it doesn't relate to what lieutenants do.
7 We're also going to have some evidence to show that
8 before the weighting system was adopted -- and there's going to
9 be -- there's no dispute that the test consists of three
10 subtests. There was a written test of job knowledge. That was
11 a multiple choice test. There was something called an
12 in-basket where the applicant got 30 pieces of paper and had to
13 read through them and answer multiple choice questions. And
14 there was an oral interview where the applicant got a bunch of
15 papers and had to give a speech about them. And those three
16 parts were weighted one third, one third, one third.
17 The evidence will show you, I believe, that before
18 adopting that one-third, one-third, one-third weighting, the
19 City's consultant did an investigation, a statistical
20 investigation to see whether there was another way to weight
21 the test. And the evidence will show you I believe that that
22 other investigation showed if you weight the test 20 percent,
23 60 percent, 20 percent -- and we'll specify which parts later
24 -- that you double the number of minorities who would be
25 promoted. And in fact I think the evidence will show that that
WANDA L. BARNES, CSR, RPR
13
1 really works with the numbers of the way the test came out.
2 And I think the City's expert or the consultant who
3 prepared the test will tell you, well, I don't think it was
4 important that weighting it one way would give us 12 minorities
5 and another way would give us five minorities, because what's
6 five people? I think that's what the testimony will be, and I
7 think under Title VII that kind of rejection, that arrogant
8 rejection of an equally valid, less discriminatory alternative
9 is not something that the court should tolerate or accept and
10 should not permit promotions to go ahead which were based on
11 that kind of thinking.
12 You're also going to hear, in light of Your Honor's
13 ruling at the beginning, evidence about how important it is to
14 be promoted to lieutenant. You're going to hear, I believe,
15 from -- you're going to hear about the 1977 lieutenant's list
16 and we're going to go down the list and show you who was
17 promoted from that list as a result of the court-ordered quota
18 and what happened to them in the police department, where they
19 went to after 10 years or 15 years.
20 We're going to trace to you how important for a
21 career it is to be promoted to lieutenant and how there really
22 is going to be true irreparable harm if these promotions are
23 allowed to go forward in rank order from the list. And we're
24 going to ask you after hearing all the evidence to think about
25 it some more and maybe if you don't want to accelerate this or
WANDA L. BARNES, CSR, RPR
14
1 consolidate it with the hearing on the merits, think about
2 accelerating the summary judgment, because the City will
3 present evidence that it needs lieutenant, and we're going to
4 present evidence that ranking lieutenants from this list is a
5 horrible tragedy that should not be allowed to go forward. And
6 the answer I think is for the court to tell the City that it
7 has to come up with something else, some other way to make
8 promotions, and I think the City has demonstrated it can do
9 that and it will do that.
10 Thank you.
11 THE COURT: Thank you, Mr. Flaxman.
12 Before you get up, there's a couple little
13 housekeeping things. One is do you want expedited transcripts
14 on this? If so, you should tell the court reporter now.
15 MR. FLAXMAN: Yes.
16 THE COURT: Okay. Secondly, I think you should all
17 introduce the folks at counsel table. Beginning with you,
18 Mr. Flaxman.
19 MR. FLAXMAN: This is Sergeant --
20 MR. KIMBER: Vance Kimber, K-i-m-b-e-r.
21 MR. FLAXMAN: Who is the plaintiff.
22 This is Dr. Robert Lovler, Who is an industrial
23 psychologist.
24 THE COURT: Good morning.
25 MR. ROCKS: This is Michael Forti and Sharon Glink
WANDA L. BARNES, CSR, RPR
15
1 from the Office of Corporation Counsel, and Dr. Gerald Barrett.
2 THE COURT: Okay. Good morning.
3 MR. ROCKS: Okay.
4 THE COURT: Okay.
5 MR. ROCKS: Plaintiff's counsel generally describes
6 the shifting burdens of the proof accurately in his opening
7 statement, and in fact the law articulated in Griggs and its
8 progeny was overturned by the Supreme Court in 1989 in a case
9 called Wards Cove, and the Civil Rights Act of 1991 for all
10 practical purposes restored the order of proof that was
11 articulated in Griggs. The specific section relating to that
12 change in the law is section 105 of the Civil Rights Act.
13 The -- if this were a trial on the merits, the orders
14 of proof that Mr. Flaxman describes would apply; but in this
15 case, because he comes here today on a motion for preliminary
16 injunction, it is he who must show the court that he has a
17 reasonable likelihood of success on the merits. For that
18 reason, he must show that the City cannot meet its burdens
19 under the Griggs section 105 burden of proof.
20 And to meet his threshold obligations under 19 --
21 under the preliminary injunction case law, he must show two
22 things. First, that the plaintiffs in this case will suffer
23 irreparable harm if the promotions of 18 of their fellow
24 sergeants are allowed to go forward.
25 These are not the first promotions to be made from
WANDA L. BARNES, CSR, RPR
16
1 this list. This list was adopted in the spring of 1995, and
2 the first round of promotions of 54 sergeants occurred at that
3 time. This lawsuit was pending at the time that round of
4 promotions was made, yet no motion for preliminary injunction
5 was filed by the plaintiffs. We argue that that is because
6 indeed they have not suffered and will not suffer irreparable
7 harm if others on the list are promoted.
8 As a matter of law in this circuit one employee does
9 not suffer irreparable harm because another employee is given a
10 promotion. If the plaintiffs ultimately succeed on the merits
11 at trial, this court is empowered to grant them promotions,
12 back pay and seniority.
13 Plaintiffs in their moving papers and perhaps today
14 will argue that an Illinois appellate court decision in a case
15 entitled McCardle v. Rodriguez gives them some relief from the
16 controlling law in this circuit. McCardle was wrongly decided.
17 There is no basis in fact or law for the proposition that one
18 employee suffers irreparable harm unless another employee's
19 promotion is enjoined.
20 More importantly, to the extent McCardle was
21 correctly decided, it squarely conflicts with the law in this
22 circuit and therefore is immaterial.
23 In fact, the lack of irreparable harm is so clear as
24 a matter of law, that this motion for preliminary injunction
25 could be denied on its face without an evidentiary hearing.
WANDA L. BARNES, CSR, RPR
17
1 The second element of plaintiff's burden in this
2 preliminary injunction motion is to show that they have a
3 likelihood of success on the merits. We will present evidence
4 today by Dr. Gerald Barrett, a test developer with a
5 significant reputation in this field. He has published
6 extensively in peer review journals and repeatedly has been
7 recognized as an expert in the field of organizational and
8 industrial psychology.
9 This examination was the product of a thorough and
10 professional job analysis. It tests a sufficient amount of the
11 job of police lieutenant to be valid under Seventh Circuit law,
12 and plaintiffs have no reasonable objections to the validity of
13 this test.
14 It is true that the City attempted to adopt merit
15 selection as a reasonably valid alternative back in the spring
16 of '94, but it is also a fact that we were unsuccessful. Judge
17 Reid in the Circuit Court of Cook County entered a preliminary
18 injunction enjoining 13 merit promotions, and the Illinois
19 appellate court in December of last year affirmed that
20 injunction.
21 Plaintiff argues in his submissions -- proposed
22 findings of fact and law that this court can order us to engage
23 in merit promotions which the Illinois appellate court has
24 enjoined us from making. Quite frankly, given the recent
25 submission we don't know what the answer to that question is,
WANDA L. BARNES, CSR, RPR
18
1 and it would require extensive research on our part to
2 determine whether in fact that is true. Our position on merit
3 selection has not changed except that it's illegal in the
4 context of this examination.
5 The other question about alternatives that is not
6 mentioned in plaintiff's opening and perhaps will be evidenced
7 here today is whether the alternatives benefit any of the
8 plaintiffs in this courtroom. It is fine to have a theoretical
9 discussion about alternative selection procedures that may have
10 been available, but the question remains whether they have
11 benefited or, if the court were to order them, would benefit
12 these plaintiffs. And we know of no evidence to that effect.
13 Finally, even if the plaintiffs could prove
14 irreparable harm and a likelihood of success on the merits
15 today, this court must balance the interests of the individual
16 plaintiffs against the interests of the public and third
17 parties. While successful plaintiffs will be awarded promotions
18 and back pay awards, no such relief is available to the City,
19 which has an immediate operational need to make these
20 promotions and must meet particular operational needs in the
21 upcoming months.
22 We ask you to deny this motion and allow the next 18
23 sergeants on the list to enter the academy next week and allow
24 the City to promote them. If plaintiffs ultimately prevail on
25 the merits, this court is empowered by Title VII to make them
WANDA L. BARNES, CSR, RPR
19
1 whole. They will suffer no injury from an adverse ruling
2 today.
3 Thank you.
4 THE COURT: Thank you. I have a few preliminary
5 questions I would like to put to both of you. Do you mind
6 coming up.
7 First of all, Mr. Flaxman, have you abandoned your
8 1981 and 1983 arguments?
9 MR. FLAXMAN: It's not part of the preliminary
10 injunction hearing.
11 THE COURT: I know, but your submission at least
12 assumed for purposes of your argument that I would grant final
13 judgment, so -- and your complaint had both of these other
14 counts in it. So I'm just asking you whether that's still part
15 of the suit.
16 MR. FLAXMAN: No.
17 THE COURT: Okay. So we can forget about that.
18 Thank you.
19 Secondly, does the City agree that the prima facie
20 case has been made here?
21 MR. ROCKS: Yes, Your Honor.
22 THE COURT: Finally, and this is really a matter of
23 law that I just want to be pondering while I hear the evidence
24 that you present, and that's the nature of the federal trumping
25 of the state law. Now, there's two points it seems to me. One
WANDA L. BARNES, CSR, RPR
20
1 is the McCardle case. Do you agree that I am not bound by the
2 McCardle case because federal law controls, Mr. Flaxman?
3 MR. FLAXMAN: Oh, that's exactly our position, Judge.
4 THE COURT: Okay. So you're not really relying on
5 that as precedent?
6 MR. FLAXMAN: We're not relying on that insofar as it
7 limits your power of Title VII. We're relying on that as a
8 statement of Illinois law that under Illinois law there's a
9 irreparable injury -- that the state courts have recognized
10 under state law that there are all these rights that somebody
11 loses when they're denied a promotion. It's our position that
12 federal civil rights law trumps any state law. It would be
13 like the state law said you can't have black children go to
14 school. That would not be entitled to much weight here.
15 THE COURT: All right. Well, what would be the
16 effect here if I were to -- I mean you're really asking me to
17 overrule the appellate court here, aren't you?
18 MR. FLAXMAN: No. The --
19 THE COURT: Not in McCardle, but in the other case
20 that they just held -- and I don't have the name right in front
21 of me, but I will in a second.
22 MR. FLAXMAN: The Cox case, Judge?
23 THE COURT: The December '95 case.
24 MR. FLAXMAN: That's McCardle, Judge.
25 THE COURT: That is McCardle. You're right.
WANDA L. BARNES, CSR, RPR
21
1 MR. FLAXMAN: We're not asking you to overrule them.
2 They didn't reach any -- they didn't have any Title VII
3 questions before them. And the -- the analogous case which we
4 cited is the Quinones decision where there was state law which
5 said that this man because he was too old could not enter a
6 pension plan, and the Seventh Circuit agreed with the district
7 court that so what? State law doesn't affect federal remedies,
8 federal rights.
9 THE COURT: I think we can all agree on that. I mean
10 here we have the Illinois courts saying that Illinois law, the
11 municipal code, requires an examination, as I read that case,
12 and the merit selection wasn't an examination under its
13 interpretation of Illinois law.
14 Now, am I bound by that interpretation of Illinois
15 law by the state courts?
16 MR. FLAXMAN: Oh. Yes.
17 THE COURT: So how could I ever order merit
18 selection?
19 MR. FLAXMAN: You can order the City to adopt an
20 equally valid, less discriminatory alternative even if it
21 violates state law. If the state law said you must promote in
22 rank order from a list, as it formerly did before Chicago
23 adopted home rule, the federal courts said doesn't matter what
24 state law says. That has a discriminatory impact, the tests
25 aren't job related, and you have to promote differently.
WANDA L. BARNES, CSR, RPR
22
1 The City has come up with this alternate remedy of
2 so-called merit selection. Their position is that it's equally
3 valid. The fact that it contravenes state law is -- it means
4 that state courts won't allow it, but it doesn't tie this
5 court's hands.
6 THE COURT: Is it your position that's the only
7 equally valid way to do it?
8 MR. FLAXMAN: Oh, absolutely not.
9 THE COURT: So I mean I wouldn't have to rule -- I
10 wouldn't have to actually order a particular method. All I
11 would have to do here is to say the one that you have chosen or
12 what you've done doesn't meet federal standards.
13 MR. FLAXMAN: All we're asking you to do at this
14 hearing is tell the City that you have to do it a different
15 way. I think the City should have the first opportunity to
16 approach the alternative. It might be that 50 percent
17 so-called merit selection is equally valid and that would be
18 more fair. But I don't think the court at this stage should be
19 telling the City how to make promotions. I think the court
20 should be telling the City you can't do it this way.
21 THE COURT: Okay. I understand your position then.
22 MR. ROCKS: Your Honor, with respect to McCardle, our
23 position is it is not binding on this court, but it is binding
24 on us; and to the extent that we are obligated to adhere to its
25 rule, we don't have a degree of flexibility that Mr. Flaxman
WANDA L. BARNES, CSR, RPR
23
Carr - direct
1 suggests.
2 THE COURT: Well, you would agree just hypothetically
3 -- this isn't what happened here, but if a state court were to
4 order you to discriminate, you wouldn't be bound by that if the
5 federal court said you shall not discriminate?
6 MR. ROCKS: That's right.
7 THE COURT: All right. Mr. Flaxman, do you want to
8 call your first witness.
9 MR. FLAXMAN: The first witness is Commissioner Carr.
10 THE COURT: Raise your right hand, please.
11 (Witness sworn.)
12 THE COURT: Thank you.
13 GLENN E. CARR, PLAINTIFF'S WITNESS, DULY SWORN
14 DIRECT EXAMINATION
15 BY MR. FLAXMAN:
16 Q Could you state your name for us, please.
17 A Glenn middle initial E Carr, C-a-r-r.
18 Q Are you the commissioner of personnel of the City of
19 Chicago?
20 A Yes, I am.
21 Q And what does that mean to be commissioner?
22 A Well, it means that I have the responsibility as an
23 appointee of the mayor to be the chief administrator of the
24 City's Department of Personnel which employees approximately
25 100 people who have as a general responsibility accepting
WANDA L. BARNES, CSR, RPR
24
Carr - direct
1 applications for various positions, assessing the
2 qualifications of candidates, referring them for consideration
3 to various departments, and maintaining personnel records of
4 current employees.
5 Q Is part of your job as commissioner to certify promotional
6 lists to appointing authorities?
7 A It is.
8 Q And for promotions to lieutenant in the police department,
9 who is the pointing authority?
10 A The superintendent of police.
11 Q Now, back in 1994, I guess, or maybe 1995, were you called
12 upon to consider certifying a promotional roster to the
13 position of lieutenant from the results of a test that had been
14 prepared by Dr. Barrett and his employees?
15 A Yes, I was.
16 Q And did you become aware of how many minorities,
17 African-American and Hispanic sergeants would be promoted in
18 rank order from that list?
19 A Yes, I became aware of it.
20 Q Did you learn it would be a very small number?
21 A Yes.
22 Q Did you consider not certifying that list for use in
23 promotions to lieutenant?
24 A Yes, I did.
25 Q And could you tell the court why you considered not
WANDA L. BARNES, CSR, RPR
25
Carr - direct
1 certifying it.
2 A It was my understanding that promotions of that number
3 which included as few minorities as it did would not be in the
4 best interest of the City in my opinion.
5 Q Was it and is it your opinion that it is in the interest
6 of the City of Chicago that the racial commotion of all ranks
7 of its police department mirror in some sense the racial
8 composition of the City -- of the people of the City of
9 Chicago?
10 A That's my opinion.
11 Q And is that also the opinion of your boss?
12 A I believe it is.
13 Q And who is your boss?
14 A The mayor of the City Chicago, Richard M. Daley.
15 Q Now, did you reject the results of the Barrett promotional
16 test?
17 A No, I did not.
18 Q Could you tell the court why you did not?
19 A I was presented with another alternative or an additional
20 mechanism by which promotions could take place.
21 Q And could you tell us what that alternative was?
22 A Yes. That alternative as presented by the superintendent
23 of police was to propose or make a certain number of promotions
24 based on what's loosely referred to as merit.
25 Q Now, were those merit promotions just going to be of
WANDA L. BARNES, CSR, RPR
26
Carr - cross
1 minorities?
2 A No.
3 Q Were they -- do you know how -- were they going to be
4 selected on merit?
5 A As far as I could tell, yes. Certainly there were
6 indications of various factors that would be taken into account
7 and weighed in determining which individual is sworn to
8 promotion.
9 Q Now, if no one had suggested that alternative of making
10 some promotions by merit, would you have certified
11 Dr. Barrett's list for promotions in rank order all by itself?
12 A Well, that's to some degree speculation.
13 Q I --
14 A I would have attempted to not certify it.
15 Q And when you did certify it along with the merit
16 promotions, was it your view that that was a better way of
17 making promotions than just making promotions in rank order
18 from the list?
19 A Absolutely.
20 MR. FLAXMAN: Thank you. I have no further
21 questions.
22 CROSS EXAMINATION
23 BY MR. ROCKS:
24 Q Commissioner Carr.
25 A Good morning.
WANDA L. BARNES, CSR, RPR
27
Carr - cross
1 Q What are the -- are there any future plans for promotions
2 to the police department in terms of new examinations?
3 THE COURT: Can you speak up a little bit? I'm
4 having trouble hearing you.
5 THE WITNESS: Thank you, Your Honor.
6 BY MR. ROCKS:
7 Q What is the City's position on new examinations, if any,
8 within the Chicago Police Department?
9 A Well, my understanding of our present position is that
10 we're open to any suggestions as to future examinations that
11 may bring about results that are more representative and the
12 mayor has given direction to pursue methods by which we will
13 hopefully reach that goal.
14 MR. ROCKS: Thank you. That's all I have.
15 MR. FLAXMAN: No redirect.
16 THE COURT: Can you just fell me then how many more
17 lieutenants the City plans to promote from this test?
18 THE WITNESS: I really can't say, Your Honor. I
19 think that will depend on operational needs and of course how
20 long the list remains in effect. As I recall, subject to
21 correction by counsel, we do plan to take down that list as
22 soon as possible, but exactly when that will be, I'm not sure.
23 THE COURT: Do you know how many vacancies there are
24 in the ranks of lieutenants at this point?
25 THE WITNESS: No. I have to defer to Superintendent
WANDA L. BARNES, CSR, RPR
28
Rodriguez - direct
1 Rodriguez.
2 THE COURT: Okay. I have nothing further. Do either
3 of you have anything based on what I asked?
4 MR. FLAXMAN: No, Your Honor.
5 MR. ROCKS: No, Your Honor.
6 THE COURT: You're excused.
7 THE WITNESS: Thank you, Your Honor.
8 MR. FLAXMAN: The next witness is Superintendent
9 Rodriguez.
10 THE COURT: Please raise your right hand, sir.
11 (Witness sworn.)
12 THE COURT: Please have a seat.
13 MATT L. RODRIGUEZ, PLAINTIFF'S WITNESS, DULY SWORN
14 DIRECT EXAMINATION
15 BY MR. FLAXMAN:
16 Q Could you state your name for us, please.
17 A Matt L. Rodriguez, superintendent of Chicago Police
18 Department.
19 Q What's your business or occupation?
20 A Of course, I'm a police officer, but I am the
21 administrator of the Chicago Police Department, chief of
22 police?
23 Q So you're the chief operating officer of the police
24 department?
25 A That is correct, counsel.
WANDA L. BARNES, CSR, RPR
29
Rodriguez - direct
1 Q Now, when did you first start working as a police officer?
2 A December 16th, 1959.
3 Q And at some point were you promoted to sergeant?
4 A Yes, I was, counsel.
5 Q And then after that you were promoted to lieutenant?
6 A I was.
7 Q And is it correct that being promoted to lieutenant was
8 the most important career service rank that you would achieve
9 in the Chicago Police Department?
10 A Let me say it perhaps is the most significant in terms of
11 -- in terms of your future as an administrator, because it's
12 key to being chosen perhaps as an exempt rank, yes.
13 Q Is it correct that the persons who are chosen to be exempt
14 rank come from the lieutenant work force?
15 A Typically and almost practically in every instance it has
16 been my policy since 1992, of course, to choose from the exempt
17 rank which I'm choosing sworn personnel, not civilian, but to
18 choose from lieutenant or captain's rank.
19 Q You just said to choose from sworn rank. You mean to
20 choose from --
21 A Well, what I mean by that is I may choose an exempt member
22 of the department who is a civilian and of course who has never
23 been a police officer, sergeant, lieutenant or captain.
24 Q But it is correct that when you do choose -- let's go
25 back. What is exempt rank?
WANDA L. BARNES, CSR, RPR
30
Rodriguez - direct
1 A Exempt rank is a position of -- within the Chicago Police
2 Department that was initiated back in the early 1960s by O.W.
3 Wilson, the former superintendent of police, and it was a rank
4 that was exempt from the civil service rules, the governing
5 regulations of the civil service, and it was a rank that was
6 initiated by his appointment at that time to specific
7 administrative functions within the Chicago Police Department.
8 Q Well, are the persons who hold exempt ranks the higher
9 level administrators of the police department?
10 A They are the executive officers of the Chicago Police
11 Department.
12 Q And do you -- you appoint the executive officers; is that
13 right?
14 A That's correct.
15 Q And they serve at your pleasure?
16 A That's correct, counsel.
17 Q And after you became a lieutenant did you get appointed to
18 an exempt rank?
19 A Not immediately, nor of course was that elevation that you
20 went through as quickly as you made it sound.
21 Q Now, sometime in 1994 or 1995 did you become aware of a
22 promotional roster that had been prepared for the City by
23 Dr. Gerald Barrett?
24 A Yes, counsel.
25 Q And that was a promotional roster for promotions to
WANDA L. BARNES, CSR, RPR
31
Rodriguez - direct
1 lieutenant?
2 A That's correct, yes.
3 Q And did you become aware of how many Hispanic and
4 African-American police sergeants would be promoted to
5 lieutenant if promotions were made in rank order from that
6 list?
7 A I don't recall whether I had the exact numbers or
8 breakdowns, but there was a recognition that there was, you
9 know, much less representation of the minorities in the final
10 examination reports than might have been anticipated, yes.
11 Q Is it bad or would it be bad for the Chicago Police
12 Department if promotions to lieutenant were not made from a
13 pool that was representative of the racial composition of the
14 sergeant work force?
15 A I have long indicated that it is ideal for a department,
16 for any police department to be as representative as possible
17 of the population that it serves. I have long held that a
18 community that is represented and the police that is serving it
19 is a community that's easier to police, it facilitates
20 policing, because of the nature of policing, because in fact we
21 as a society place a great deal of responsibility and provide a
22 lot of authority to police.
23 Q Now, in order for you to become promoted to sergeant and
24 lieutenant, did you have to take paper and pencil tests?
25 A I did, counsel.
WANDA L. BARNES, CSR, RPR
32
Rodriguez - direct
1 Q And is it fair to say that you happened to do very well on
2 those paper and pencil --
3 A I was fortunate, yes.
4 Q Now, in your experience in the Chicago Police Department
5 have you encountered police officers and sergeants and
6 lieutenants who you believe have extremely high potential to be
7 supervisors in the police department but who have problems with
8 paper and pencil tests?
9 A First of all, the likelihood that they have extreme
10 problems with paper and pencil tests is not there if in fact
11 they are sergeants, lieutenants or captains. So they have had
12 some success in this area, it's likely to presume, because of
13 the nature of the testing process in the past.
14 Have I encountered individuals who apparently and
15 from my judgment have a lot of leadership potential, would make
16 excellent supervisors and have not been eligible because of
17 their inability to pass paper and pencil tests? My answer to
18 that question would be yes.
19 Q And when you learned about the results of the Dr. Barrett
20 paper and pencil test, did you conclude that those police
21 sergeants who had demonstrated supervisory potential but who
22 did not do well on paper and pencil test should have some way
23 to get promoted?
24 A The end results of what you just said, counsel, was, you
25 know -- is correct, but just what happened was I first of all
WANDA L. BARNES, CSR, RPR
33
Rodriguez - direct
1 looked at the recommendations of the Blue Ribbon Panel that was
2 initiated by the mayor back in 1990, and there were suggestions
3 with respect to some other processee -- process other than
4 paper and pencil that might be able to recognize individuals
5 who have leadership ability, who have good supervisory
6 potential.
7 And then I initiated what I felt was a process --
8 after I obtained a judgment by the commissioner of personnel
9 that it would be appropriate for me to initiate a merit
10 selection process in conjunction with paper and pencil test for
11 lieutenant, I then initiated a process that I thought would
12 best exemplify or best attempt to produce the kind of things
13 I'm talking about that I have witnessed and exemplified -- seen
14 exemplified throughout my career.
15 Q Let's go back to the Blue Ribbon Panel. Can you tell the
16 court just a little bit what that was.
17 A Yes. The -- in approximately 1990, I'm not sure of the
18 exact date, the mayor of the City of Chicago initiated a Blue
19 Ribbon Panel to look at promotions, because very frankly the
20 promotional policy -- policies of the City and the police
21 department over the past quarter of a century have resulted in
22 exactly what we're doing here this morning, in litigation, and
23 -- which has created a lot of problems, problems within the
24 department, morale problems, problems affecting the
25 relationship between the police and the community, and this
WANDA L. BARNES, CSR, RPR
34
Rodriguez - direct
1 panel which had some very distinguished -- I speak of criminal
2 justice participants from -- throughout the country, convened,
3 I don't know how often, but made some recommendations.
4 Among those recommendations were that a test process
5 be initiated by an independent source, independent of the -- of
6 Chicago Police Department input, independent of the city
7 agencies' input so that it would for all intents and purposes
8 be as free from criticism of interference and also it did, as I
9 indicated, recognize that paper and pencil is not the sole
10 means by which the future supervisors should be -- should be
11 sought.
12 Q Okay. Now, was one of the recommendations of the Blue
13 Ribbon Panel that the superintendent have discretion to select
14 from sergeants irrespective of test scores persons who had
15 demonstrated potential to be promoted?
16 A Counsel, I wish I had the material before me. There was a
17 -- there was a recommendation that there be more authority
18 provided to the superintendent to do something along the lines
19 you just said, but I don't want to mislead.
20 Q After you learned about the results of this lieutenant
21 promotional roster that's at issue in this case and you talked
22 with Commissioner Carr about an alternative, what alternative
23 did you look at?
24 A Well, again, and I hope I don't sound too academic here,
25 but every organization has, you know, a formal and informal
WANDA L. BARNES, CSR, RPR
35
Rodriguez - direct
1 organization that really makes up what we call an organization,
2 and, quite frankly, there is a leadership within an informal
3 organization, and it's usually readily recognized by sharp
4 executives, by sharp managers.
5 What I did was initiated a process whereby the
6 command level, individuals who were commanders, directors,
7 deputy chiefs, would be allowed to make two nominations of
8 individuals who they felt had leadership, supervisory
9 qualities. These nominations would be supported by articulable
10 facts submitted with the nominations. They would be submitted
11 to an already existing academic selection board in the Chicago
12 Police Department, made up of the five deputy superintendents
13 and the director of training.
14 From those nominees the academic selection board
15 submitted a final group to me for my review. I don't recall
16 the numbers of that group, but from those -- from that group
17 and from those recommendations I choose 13 individuals.
18 Q Now, was that group, that whole process you described, put
19 into place to select minority sergeants?
20 A No, it was not. It was a merit selection process. It was
21 nothing really foreign to any of the individuals involved
22 because we have such a process for merit selection of what we
23 call the D 2 rank, and the D 2 rank is the detectives, the
24 youth officers and the gang crime investigators.
25 Q What is the academic selection board?
WANDA L. BARNES, CSR, RPR
36
Rodriguez - direct
1 A Academic selection board is a board composed of the five
2 deputy superintendents and the director of training. Its
3 purpose is in addition to the functions that I gave -- function
4 and responsibility I gave, in addition to that, it's involved
5 in the selection process for merit selection for the D 2 rank,
6 again detectives, youth officers and gang crime investigators.
7 In addition to that any request to attend some
8 academic course, any selection for individuals to attend the
9 FBI National Academy, which is a three-month course, to -- in
10 the past we sent representatives to Northwestern Traffic
11 Institute for a full academic year at Northwestern University,
12 those matters are all handled by the academic selection board.
13 Q Now, when you got that list of -- I think you said it was
14 13, was that -- the sergeants who made up that 13
15 representative of the sergeant work force in terms of their
16 race and sex?
17 A Counsel, I'm going to really not respond directly on that
18 because I'm not certain what the numbers were racially. It was
19 like eight to five, eight minority representatives or seven
20 minority representatives. I'm not certain.
21 Q But it wasn't 13 of one race or 12 of one race and one of
22 another? It was --
23 A It was not a single race, no. Nor was it a single gender.
24 Q Now, is it your understanding that there are plans in the
25 police department to make 54 additional promotions from the
WANDA L. BARNES, CSR, RPR
37
Rodriguez - direct
1 current lieutenant roster?
2 A I understand that that was an announcement made during a
3 press conference which the mayor -- you know, the mayor made an
4 announcement. I don't know where the number came from, you
5 know, where the projection came from. I made a projection of a
6 hundred and seventy-three at the time that I thought the list
7 would be out for three years. So someone else has made a
8 projection, the basis of which I am not certain.
9 Q Okay. Is there any work underway right now as we sit here
10 to prepare a new list?
11 A My understanding is that there is -- there is a task --
12 two task forces are going to be initiated and I would expect
13 that the next process will greatly depend on the meeting of
14 these tasks forces.
15 Q Now, you're the person who appoints police sergeants to be
16 lieutenants; is that right?
17 A I ask for the list -- I ask the commissioner of personnel
18 to authorize the promotion of individuals from sergeant to
19 lieutenant. He provides me with a list and then I appoint.
20 Q Now, you talked about the number of vacancies that are
21 going to be filled. Is it correct that that's a decision that
22 you make in consultation with the mayor and other advisers
23 about the whole consideration of needs of the City?
24 A Before -- yes. Before I answer your question, I need to
25 go back to the last question.
WANDA L. BARNES, CSR, RPR
38
Rodriguez - direct
1 I appoint. I promote. You know, appoint, I appoint
2 exempt members. I promote individuals based on established
3 criteria.
4 Q The decision about how many vacancies to be filled, that's
5 not yours alone, is it?
6 A No. What happens is I continually attempt to identify my
7 needs, the organizational needs, and I continue to ask the
8 chief executive -- and when I say chief executive, I am not
9 speaking specifically only of the mayor. I'm talking about the
10 budget office and all those considerations, fiscal
11 considerations and the like have to be taken into account.
12 But typically the budget is the best plan that we
13 have in place sometime in June or July for the following year.
14 So for instance we have 1250 sergeants that we had budgeted for
15 the year 1996, and it was our expectation in July of 1995 that
16 this is what our needs would be in 1996. It's a plan.
17 Q Okay. Now, you talked about morale. Is it -- well, let
18 me -- in the history of the Chicago Police Department have
19 there ever been to your knowledge promotions made from a list
20 after the list has been taken down?
21 A I think there has been litigation that has resulted in
22 something like that. I really think -- it may be a recruit
23 list, a candidate list. I'm not certain.
24 Q What I'm trying to get at is this morale question. Let's
25 assume that the City goes ahead and makes 54 more promotions
WANDA L. BARNES, CSR, RPR
39
Rodriguez - direct
1 from the current list and that the City then makes up a new
2 promotional system and everybody who wants to be promoted takes
3 part in that promotional system, studies for a test or prepares
4 for some kind of an exam, and then two years later a court says
5 that people who took the exam three years ago should be
6 promoted and not the people who studied for the new exam.
7 Would that be bad for morale? Overall morale.
8 A The answer -- the answer is -- the answer is yes.
9 Counsel, the fact that we're involved in this
10 litigation is going to have an effect on morale. The fact that
11 there is a question as to the equity of a process that is very,
12 very important to the men and women of the Chicago Police
13 Department, whether it's the promotional process to sergeant or
14 lieutenant, whether it's the selection process for D 2
15 positions, and the fact that this becomes a public issue
16 affects morale.
17 Q Well, you weren't involved, were you, in preparation of
18 Dr. Barrett's test?
19 A I was not.
20 Q And were you involved in deciding how the three parts of
21 the test should be weighted?
22 A I was not.
23 Q Did Dr. Barrett ever tell you that if he had weighted the
24 three parts of the lieutenant's test 20 percent for the
25 written, 20 percent for the in-basket, 60 percent for the oral,
WANDA L. BARNES, CSR, RPR
40
Rodriguez - cross
1 it would increase the number of minorities by about -- in the
2 top hundred and fifteen by five?
3 A I may have met Dr. Barrett, but I don't recall, and if we
4 had discussed something like this, I would remember.
5 Q Well, if he had told you there was a way to weight the
6 three parts of the test differently that would increase the
7 number of minorities who would be selected and that he told
8 told you that the difference in validity was one percentage
9 point, would you have told him to weight the test differently
10 than the way he did it?
11 MR. ROCKS: Objection, Your Honor. Calls for facts
12 not in evidence and it also calls for the witness to speculate.
13 THE COURT: Sustained.
14 MR. FLAXMAN: I have nothing further.
15 THE COURT: Thank you. Your witness.
16 CROSS EXAMINATION
17 BY MR. ROCKS:
18 Q Superintendent, if -- I'm going to address the questions
19 that Mr. Flaxman just asked you about, the weights of the exam.
20 What effect do you think -- suppose the court today
21 were to order the City to reweight the components of this exam
22 in a different fashion than we did when the list was put up.
23 It would change the order of people on the list. What effect
24 would that have on morale?
25 MR. FLAXMAN: Speculative kind of question.
WANDA L. BARNES, CSR, RPR
41
Rodriguez - cross
1 Objection.
2 THE COURT: He's asking about morale now rather than
3 what would you have done if somebody had told you, which was
4 sort of two steps out from that, and you've asked him about
5 morale. I'll let them answer the question.
6 BY THE WITNESS:
7 A There would be a -- there would be a negative effect, of
8 course, and I think the minority sergeants are not looking for
9 some -- some juggling. They feel that they are competent, and
10 that is what we need. We need competent supervisors. We need
11 competent lieutenants. And so it's not a matter of juggling
12 numbers to get an effect. They are looking for a fair test
13 that would recognize their abilities, and I think that's the
14 most important thing we should be talking about.
15 BY MR. ROCKS:
16 Q What year were you promoted to sergeant?
17 A 1965.
18 Q And what year were you promoted to lieutenant?
19 A 1978.
20 Q Do you recall which lieutenant's examination you took?
21 A I believe the process occurred in 1970.
22 Q The -- is there a particular --
23 A I'm sorry. The process for -- the process in which I made
24 lieutenant occurred in November of 1977. That was a test. I
25 was promoted in December of 1978.
WANDA L. BARNES, CSR, RPR
42
Rodriguez - cross
1 Q When were you appointed to your first exempt position?
2 A April of 1980.
3 Q Is it fair to say that there are some lieutenants in the
4 department today who have never held exempt ranks?
5 A That is very easy to say because, you know, the number of
6 exempt ranks now are 87. The number of officers in the Chicago
7 Police Department are 13,400.
8 Q Is it also fair to say that there is no particular length
9 of time one must be a lieutenant before being appointed to an
10 exempt position?
11 A That's correct.
12 Q What are the -- do you know the current number of
13 lieutenant vacancies in the police department?
14 A I believe as of February 1st there were 18 vacancies. Not
15 to mislead you, there is a complete reorganization going on
16 within the Chicago Police Department involving our CAPS,
17 Chicago Alternative Policing Strategy. There's changes in the
18 function of a key function that impacts the lieutenant's
19 position, and that is the watch commander's position.
20 So at this point in time for the number of vacancies,
21 it's approximately 18. Once the watch commander position is
22 finally -- when we iron out what we need to iron out with
23 respect to that function, I expect the numbers to be increased
24 by perhaps 38 in terms of vacancies.
25 Q One last question. If the court were to enjoin the
WANDA L. BARNES, CSR, RPR
43
Rodriguez - cross
1 promotion of the 18 sergeants that we're planning to put into
2 the academy next week, what effect would that have on
3 departmental operations?
4 A I need to tell you -- I cannot divorce the lieutenant's
5 position from the sergeant's position because, of course, you
6 know, they both run hand in glove with respect to operations.
7 We are extremely, extremely short of both sergeants and
8 lieutenants, and whether you take the 18 vacancies or you add
9 to it the 38 that will likely become vacant in the very near
10 future, what happens is we have 2,000 new police officers we've
11 hired in the last two years. It is very important for these
12 officers to have adequate supervision.
13 I need not -- you know, I need not go far from home
14 talking about the possibility of corruption and problems within
15 any organization, but one need to look not very far around
16 what's going in the country, cities such as Philadelphia, New
17 York, Los Angeles, with respect to problems in policing. It's
18 important that these problems don't manifest themselves in a
19 systematic kind of corruption problem.
20 And it's very -- the key to that is good supervision,
21 and now we have 2,000 new police officers in the last two
22 years, it's very important that we have adequate supervision,
23 and particularly because we're going into a new strategy. This
24 is a time of extreme change within the Chicago Police
25 Department.
WANDA L. BARNES, CSR, RPR
44
Rodriguez - redirect
1 Operationally it is very, very important.
2 MR. ROCKS: Thank you, sir. I have nothing else.
3 REDIRECT EXAMINATION
4 BY MR. FLAXMAN:
5 Q This complete reorganization, this new change, is that
6 going to change the kind of work that a lieutenant does?
7 A It will -- it will affect the kind of work a lieutenant
8 does. The lieutenant will remain responsible for performing
9 many of the functions that a lieutenant performs, but it will
10 change his role as a leader, of a -- his or her role as a
11 leader of the operational people within the respective
12 districts.
13 The lieutenant will become very involved in chronic
14 crime problems and the conditions they lead to, the crime
15 problems, will become involved as a team leader, and will be
16 also a -- you know, a connection with the community.
17 Q So is the ability of a lieutenant to understand oral
18 communication from people in the community something that's
19 going to be more important under the new program, the CAPS
20 program, than it is now?
21 A It should have always been important, but it will be more
22 important, yes.
23 Q And back in 1984, was this CAPS program in place? Did you
24 know that these were the changes that were going to be made?
25 A In 1994, 1994, yes.
WANDA L. BARNES, CSR, RPR
45
Rodriguez - by the Court
1 Q Now, you talked about fairness in passing. Was it your
2 view that a promotional process which selected, oh, the best
3 qualified sergeants to be lieutenants and came up with a pool
4 that was 95 percent white and five percent African-American and
5 Hispanic, was it your view that that was a fair system to
6 select the most qualified sergeants?
7 A It was my view that there was cause for concern because
8 there should -- I expected -- I expected the results to be more
9 reflective of the candidate pool. I saw no reason for the
10 results to be more representative of the candidate pool.
11 Q So is it correct that your experience is that as a group
12 African-American sergeants are just as capable, qualified to be
13 lieutenant as white sergeants?
14 A Without question, counsel.
15 Q And the same is true for Hispanic sergeants?
16 A Without question.
17 MR. FLAXMAN: Thank you. Nothing further.
18 THE COURT: I have one question for you, sir, sort of
19 the flip side of something your lawyer asked you.
20 If these promotions were allowed to go ahead today or
21 in the near future and ultimately this court were to determine
22 that the test process was violative of federal law and ordered
23 as a remedial measure the promotion of the individuals who are
24 plaintiffs in this case and perhaps like individuals, how would
25 the police department handle that?
WANDA L. BARNES, CSR, RPR
46
Rodriguez - by the Court
1 THE WITNESS: The police department, meaning the
2 people in authority, meaning the superintendent and the
3 management organization, we would handle it. Moralewise there
4 would be -- there would be problems, as there are now. How
5 much more exacerbated they may be, it's a matter of conjecture.
6 THE COURT: Let me more specific. Would the
7 promotion of these plaintiffs --
8 (Fire alarm going off.)
9 THE COURT: Off the record.
10 (Discussion off the record.)
11 THE WITNESS: Your Honor, what happens even -- you
12 know, even with the present litigation right now, there
13 becomes, you know, I don't know, a chasm between individuals
14 who are involved, and it would probably be exacerbated, because
15 what happens is the issue gets put into question and then
16 there's a court imposed resolution apparently, and now there
17 will be, you know, another matter or another issue raised in
18 the court which will kind of have another court resolution.
19 I'm being as truthful as possible, Your Honor, and it
20 -- the question as to, you know, what's right or wrong is
21 something that's going to be a judgment of law and a judgment
22 that you have to make, Your Honor, with respect to federal law.
23 But organizationally, organizationally the men and women of the
24 Chicago Police Department will continue to protect the
25 community. That's all I can say.
WANDA L. BARNES, CSR, RPR
47
Rodriguez - by the Court
1 THE COURT: I appreciate that, and I'm concerned --
2 when I say organizationally, let me be more specific. If you
3 were ordered to promote these plaintiffs or -- let's just leave
4 it at that for now, would you have to demote people that you
5 promoted in their place at this time, if you were allowed to do
6 that?
7 THE WITNESS: Your Honor, I would not -- I have never
8 -- I have never heard of a demotion under these circumstances.
9 I have not heard of it, nor do I have any personal experience.
10 I just -- it's never been a question.
11 Once individuals have been sworn in, the expectation
12 of a job right, if you will, or the expectation that they in
13 fact are sergeants or lieutenants has always been there, and I
14 -- I don't know if there is any situation nationally where the
15 -- I suppose there is where they have taken them -- but I just
16 don't know about it.
17 THE COURT: So just to make sure I understand you
18 perfectly clearly, if the people you want to promote now were
19 promoted, in other words, you were not enjoined, and ultimately
20 I was to determine that this test was invalid for one reason or
21 another, and I ordered you to give the plaintiffs back pay and
22 promote them, you would promote them without affecting the
23 people that you promoted in the immediate future?
24 THE WITNESS: Your Honor, for whatever it's worth, I
25 would -- I would ask you please, you know, individuals who have
WANDA L. BARNES, CSR, RPR
48
Rodriguez - redirect
1 been promoted, who have followed whatever rules that we had set
2 out for them, were promoted on the basis of those rules and who
3 fully expect that they -- they are worthy of being sergeants
4 and lieutenants, and I have no reason to expect that they are
5 not worthy of it, I would not -- I would beg you not to demote
6 them.
7 THE COURT: No, I am not suggesting that the court
8 would ever order their demotion. Would you -- and from what
9 I'm hearing -- just tell me if I'm right or wrong -- you would
10 not have to demote them either in order to promote the
11 plaintiffs should that be the ultimate result in this case?
12 THE WITNESS: I would expect that I would not.
13 THE COURT: Okay. That's the answer to the question.
14 All right. Do either of you wish to ask the witness
15 any questions based on what I asked?
16 MR. ROCKS: Yes, Your Honor.
17 MR. FLAXMAN: Yes.
18 THE COURT: Okay. Mr. Flaxman.
19 MR. FLAXMAN; Thank you.
20 REDIRECT EXAMINATION
21 BY MR. FLAXMAN:
22 Q Talking about the operational needs --
23 MR. FLAXMAN: And, Judge, we would not be asking to
24 demote anybody. Just so that's clear.
25 BY MR. FLAXMAN:
WANDA L. BARNES, CSR, RPR
49
Rodriguez - redirect
1 Q Talking about the operational needs, would it be better
2 for the morale and the operational needs if the judge ordered
3 you to add four minorities to the 18 you had planned next week
4 rather than adding 40 minorities two years down the road?
5 A If the judge were going to be open to the inclusion of
6 additions to those people who are on a rank order list, I would
7 expect that a -- an equitable merit selection process would be
8 the best possible solution. It would be the most acceptable,
9 counsel.
10 Q Would that --
11 A You asked me the question and I think that's the answer.
12 Q I'm not challenging your answer. But would it be better
13 if all promotions were made at the same time rather than some
14 now and some a year down the road?
15 A That's going to be conjecture on my part to respond to
16 that, but I would expect that as the promotions came about
17 because what then happens is we then again isolate a group and
18 we say sometime at the end of the formal process these
19 individuals will now be put together and will come to training,
20 and that again, you know, creates that separation.
21 Q So is what you're saying, without putting words in your
22 mouth, if there were catch-up promotions later, those who were
23 caught up might be stigmatized or viewed as affirmative action
24 lieutenants or something like that?
25 A I'm saying -- yes, I'm saying that if one were to do it in
WANDA L. BARNES, CSR, RPR
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Rodriguez - redirect
1 one lump at one point in time, it would be less preferable than
2 doing it as promotions came about by vacancies.
3 Q You talked about the merit selection. How long did it
4 take you back when this -- when you first learned about the
5 Barrett list to get that whole merit selection process in place
6 and select the people?
7 A Well, the skeletal was there, counsel, you know, because
8 we use it and it's part of our promotion process for the D 2
9 positions. The skeletal was there. The academic selection
10 board is there and has a continuing purpose throughout the
11 year. And we have done promotions for the D 2 positions based
12 on the skeletal I use.
13 What I did differently, I issued an order -- I don't
14 have it with me -- outlining the criteria that I felt the
15 commanders and directors should follow, and again I use the
16 word articulable. They had to be -- to a great extent some of
17 these points were subjective, however, they had to be
18 articulated by the nominating director or commander, so that
19 the board could review it and perhaps call the commander or
20 director telephonically to reinforce what was written.
21 Q Did that whole process take six months or a day or a week?
22 A It took a matter of weeks.
23 MR. FLAXMAN: Thank you.
24 BY THE WITNESS:
25 A Three weeks.
WANDA L. BARNES, CSR, RPR
51
Rodriguez - recross
1 MR. FLAXMAN: Thank you.
2 RECROSS EXAMINATION
3 BY MR. ROCKS:
4 Q Superintendent, how do vacancies occur in the lieutenant's
5 rank?
6 A Typically by attrition or by promotion. I may promote a
7 lieutenant to an exempt position and that creates a vacancy in
8 a lieutenant's position. I believe our attrition rate for
9 lieutenants is about two per month.
10 Q And attrition occurs for a variety of reasons?
11 A Resignation, death, yes.
12 Q Is it that attrition rate that caused you to estimate the
13 173 promotions last year?
14 A That's exactly the only thing we can count on is to look
15 at the normal attrition rate and project it. That's correct.
16 Q Do you recall in the litigation before Judge Marshall in
17 USA v. City that the federal court ordered a certain number of
18 promotions of minority personnel the police department?
19 A I recall that.
20 Q Do you know whether in any of the promotions that were
21 ordered in that litigation, was anyone demoted as a result of
22 the promotions of other people?
23 A No. As I just indicated to the judge, I don't recall that
24 at all ever occurring.
25 Q If I could propose to you that we have a scale and on the
WANDA L. BARNES, CSR, RPR
52
Rodriguez - recross
1 one hand you have your immediate operational concern about the
2 promotion of these 18 and perhaps as many as 50 or so
3 lieutenants and on the other hand your concerns about the
4 effects of promotions on particular individuals later on, which
5 is more important to you right now?
6 A At this point in time the operational needs. We're
7 talking about protection of life and property. We're talking
8 about -- we're talking about perhaps the generating of
9 attitudes and work habits by 2,000 new police officers that are
10 going to affect the life and safety of our citizens for the
11 next 20 years.
12 The operational needs have to outweigh right now, you
13 know, any other consideration.
14 Q One last question. If in fact motions were delayed or
15 stayed or enjoined during this proceeding and a year from now a
16 lump of promotions were made as Mr. Flaxman referred to it, can
17 you wait a year to make promotions to lieutenant?
18 A Counsel, I'm over 200 sergeants short right now, and I
19 expect when we establish the watch commander position, I have
20 to have time to discuss it with the lieutenants and sergeants
21 association, that I'm going to be very frankly 50 some
22 lieutenants short. And it's -- with the change in strategy in
23 the Chicago Police Department that's going on now, it's
24 imperative that we get -- we get those vacancies filled.
25 MR. ROCKS: Thank you.
WANDA L. BARNES, CSR, RPR
53
Rodriguez - recross
1 THE COURT: Can you tell me more about this watch
2 commander thing. You've mentioned it several times now. I'm
3 not sure I understand.
4 THE WITNESS: Judge, back in 1991 there was a
5 decision made that the rank of captain would not become --
6 would not replenished, if you will. The -- theoretically and
7 right now practically the rank of captain as a promotable rank
8 no longer is in existence.
9 Captains typically were the watch commanders in the
10 districts. The watch commanders are the individuals who
11 immediately represent the district commander, and they are in
12 fact in effect the district commander when the district
13 commander is not in the station, which is operating on a
14 24-hour basis.
15 In the past, as I indicated, these positions were
16 filled by captains of police. In the future they will be, as
17 they are now, filled by captains of police and lieutenants of
18 police. And so when those positions, which number 75 in the 25
19 districts, would still have about 38 captains, when those
20 positions effectively and formally are put into place, those
21 lieutenants will no longer be operational lieutenants as such.
22 They will be watch commanders. And so that will increase the
23 need for lieutenants.
24 THE COURT: So eventually as the captain ranks --
25 THE WITNESS: Deplete.
WANDA L. BARNES, CSR, RPR
54
Rodriguez - recross
1 THE COURT: -- deplete through attrition or whatever,
2 all of those positions will be filled by lieutenants?
3 THE WITNESS: That's correct, Judge.
4 THE COURT: So are you going to increase the number
5 of lieutenant positions overall?
6 THE WITNESS: They will -- well, the watch commander
7 becomes a new position. So what happens is if we have a need
8 for 225 lieutenants -- that remains consistent -- we will have
9 a need for 75 watch commanders; and if they continue to be
10 filled by lieutenants of police and then depending upon the
11 remaining captains, those would be additional lieutenants
12 positions.
13 In effect what you say is right, but I need to
14 explain it the way I just did.
15 THE COURT: All right. I understand. Thank you.
16 Anything else, gentleman?
17 MR. FLAXMAN: No.
18 THE COURT: You're excused. Thank you very much.
19 THE WITNESS: Thank you very much.
20 (Witness excused.)
21 THE COURT: Let's take a five-minute break.
22 (Brief recess taken:)
23 THE COURT: Please be seated.
24 We can go to 12.
25 MR. FLAXMAN: Our next witness, Your Honor, is
WANDA L. BARNES, CSR, RPR
55
Hilbring - direct
1 Commander Hilbring.
2 THE COURT: Please raise your right hand, sir.
3 (Witness sworn.)
4 THE COURT: Please have a seat.
5 DONALD HILBRING, PLAINTIFF'S WITNESS, DULY SWORN
6 DIRECT EXAMINATION
7 BY MR. FLAXMAN:
8 Q Would you state your name, please, for us and spell your
9 last name again.
10 A Donald Hilbring, H-i-l-b-r-i-n-g.
11 Q And what's your business or occupation?
12 A Commander of gangs investigation section, Chicago Police
13 Department.
14 Q And how long have you been employed by the Chicago Police
15 Department?
16 A Since 1966.
17 Q And after being employed as a police officer did you
18 become a sergeant?
19 A I became a sergeant in 1977.
20 Q And after becoming a sergeant did you become a lieutenant?
21 A I became a lieutenant in 1984.
22 Q Did you take the November 1977 lieutenant's test?
23 Did you take the lieutenant's test in 1977?
24 A Yes, I did.
25 Q And when you got promoted to lieutenant in 1984, were you
WANDA L. BARNES, CSR, RPR
56
Hilbring - direct
1 promoted over other officers who had higher scores?
2 A Yes, I was.
3 Q And was that because of a court decision?
4 A Yes, it was.
5 Q And was that court decision related to the fact that
6 you're African-American?
7 A Yes, it was.
8 Q Now, after you got promoted as lieutenant, did you work as
9 a lieutenant?
10 A Yes, I did.
11 Q What did you do when you first worked as a lieutenant?
12 A I was assigned as a field lieutenant to the 10th police
13 district.
14 Q Now, just to give us some background on this, how many
15 police districts are there?
16 A 25.
17 Q Is it correct that the city is broken up into 25
18 districts?
19 A Yes, it is.
20 Q And are there field lieutenants in each district?
21 A Yes, there are.
22 Q What is a -- how many field lieutenants are there in each
23 district?
24 A Oh, approximately three to a shift -- I mean three to a --
25 three to a shift. That would be about nine. Nine lieutenants
WANDA L. BARNES, CSR, RPR
57
Hilbring - direct
1 to the patrol shift and one extra lieutenant, which was a
2 tactical lieutenant. So there would be approximately ten
3 lieutenants.
4 Q Now, you talked about shifts, is it correct that the
5 Chicago Police Department works 24 hours a day?
6 A Yes, it does.
7 Q Are there three eight-hour shifts that make up the 24
8 hours?
9 A Yes, there are.
10 Q And are there -- ideally there should be three lieutenants
11 on each shift?
12 A Yes, sir.
13 Q And you talked about a tactical lieutenant. What is --
14 what does the tactical lieutenant do?
15 A A tactical lieutenant oversees the duties and
16 responsibility of the district tactical teams.
17 Q What is -- for those of us who don't know, what is a
18 tactical team?
19 A Tactical team addresses the specific crime problems within
20 a district. They work in plain clothes.
21 Q And they drive these unmarked police vehicles?
22 A Yes, they do.
23 Q Now, after working as a field lieutenant, what did you do?
24 A After working as a field lieutenant, they sent me to the
25 Northwestern Traffic Institute where I took a -- it was a long
WANDA L. BARNES, CSR, RPR
58
Hilbring - direct
1 course in police administration, and then I was assigned to the
2 employee development section of the personnel division as the
3 commanding officer.
4 Q And what did you do after that?
5 A After that I was promoted to captain in 1988.
6 Q And what did you do as a captain?
7 A I was assigned as a watch commander to the 9th police
8 district.
9 Q And what does a watch commander do?
10 A A watch commander oversees the shift operation of the
11 particular district he's assigned to. He overviews the
12 processing of prisoners, the giving out of assignments, and
13 ensuring that the policies and procedures of the police
14 department are enforced, being followed.
15 Q Is there one watch commander per each shift?
16 A Yes.
17 Q So that there should be three watch commanders if there
18 are -- in each district?
19 A Yes.
20 Q Now, how long did you work as a watch commander?
21 A For one year.
22 Q What did you do after that?
23 A I was promoted to a district commander in the 21st
24 district.
25 Q Now, what does it mean -- what does a district commander
WANDA L. BARNES, CSR, RPR
59
Hilbring - direct
1 do?
2 A A district commander is responsible for the activities of
3 the entire district for all three watches.
4 Q So there are -- are there at least 25 district commanders?
5 A Yes, there are.
6 Q And district commander, are there -- is there one district
7 commander for each district?
8 A Yes.
9 Q And after being district commander, what did -- what work
10 did you do?
11 A I was in that capacity for approximately four years. Then
12 I received a lateral position as the commander of the gang
13 investigation unit.
14 Q And what do you do as commander of the gang investigation
15 unit?
16 A Gang investigations unit is a citywide unit that has
17 responsibility for the organized crime enterprise of organized
18 street gangs.
19 Q Is it fair to say that in your work in the Chicago Police
20 Department you've become familiar with what a lieutenant does?
21 A Yes.
22 Q Is the ability to write clearly and concisely part of what
23 a lieutenant does?
24 A Definitely is.
25 Q Is that an important part of what a lieutenant does?
WANDA L. BARNES, CSR, RPR
60
Hilbring - direct
1 A It's one of significant importance.
2 Q And why does a lieutenant have to write clearly and
3 concisely?
4 A Because he has to convey information to the higher
5 authorities, the hierarchy of the command structure of the
6 police department.
7 Q Is some of that information about important things?
8 A Crime incidents, community relationships, personnel
9 problems, things of that nature.
10 Q Does a lieutenant have to write up a report whenever there
11 has been a shooting?
12 A The lieutenant has to always write up a cover report to
13 all shootings, police-related shootings.
14 Q That's what I -- I'm sorry. Thank you.
15 Is the ability to interpret oral communications, what
16 people say, important for a lieutenant?
17 A Yes, because on numerous times, especially with police
18 officers, they say one thing and write something else, so you
19 have to be able to understand what they're trying to say in
20 their writing.
21 Q That's about understanding what police officers say.
22 A Yes.
23 Q Is it also important for a lieutenant to understand what
24 civilians say?
25 A Oh, yes.
WANDA L. BARNES, CSR, RPR
61
Hilbring - direct
1 Q How does a lieutenant talk to civilians?
2 A Talks to them I suppose as any other individual talks to
3 them.
4 Q What I meant, what part of the lieutenant's work does he
5 or she involve in talking with civilians?
6 A Well, in many instances, he has to talk -- he represents
7 -- he represents the district commander at community meetings.
8 Under the CAPS program a lieutenant will be responsible for
9 attending numerous community meetings and beat meetings. So he
10 must be able to articulate and understand the problems that the
11 community has and understand the problems with the city and the
12 other city agencies to deal with that particular problem.
13 So he must be able to not only convey his message,
14 but also to understand the message that they're conveying.
15 Q Okay. What I want to do now is show you what's been
16 marked as Plaintiff's Exhibit 36.
17 MR. FLAXMAN: And just so the court doesn't
18 misunderstand, we've been using a sequential numbering system
19 for this case and the sergeant's case, and we're -- have -- we
20 don't have 35 other exhibits that we're going to be
21 introducing.
22 THE COURT: Good.
23 MR. FLAXMAN: This just happens to be 36.
24 BY MR. FLAXMAN:
25 Q Now, is it correct that Plaintiff's Exhibit 36 is the
WANDA L. BARNES, CSR, RPR
62
Hilbring - direct
1 final rankings of the 1977 lieutenant's list -- test?
2 A Yes, that's my understanding.
3 Q Okay. And does your name appear on that list?
4 A Yes, it does.
5 Q And where?
6 A I believe I'm No. 241.
7 Q Okay. Is that -- that's on page 12; is that right?
8 A Yes, it is.
9 Q Now, you weren't the 241st person promoted, were you?
10 A No, I was not.
11 Q And that's because of a quota that was superimposed on the
12 list by the federal court; is that right?
13 A Yes, sir.
14 Q Now, if you look at this list, let's start with -- well,
15 let's start with -- oh, let's start with like page 7. Do you
16 see any African-American or Hispanic persons who you know were
17 promoted to lieutenant and subsequently were selected or
18 appointed to exempt positions?
19 A I believe No. 141.
20 Q And who is that?
21 A John Richardson.
22 Q And what exempt position did Mr. Richardson get?
23 A He's currently commander of the 2nd police district.
24 Q Anybody below Mr. Richardson?
25 A No. I believe that's it.
WANDA L. BARNES, CSR, RPR
63
Hilbring - direct
1 Q Well --
2 A Not on this particular page.
3 Q Okay. Would you turn the page then. Do you see anybody's
4 name on page 8, an African-American or Hispanic who was
5 promoted to lieutenant and subsequently appointed to an exempt
6 position?
7 A Charles Ramsey.
8 Q And what's his number?
9 A 169.
10 Q Okay. How about the next page?
11 If you look at No. 180. Do you know who that is?
12 A That's Gerald Cooper.
13 Q And did he ever serve in an exempt position in the Chicago
14 Police Department?
15 A Yes, he did.
16 Q What exempt position did he serve in?
17 A General counsel to the superintendent.
18 Q And how about No. 197?
19 A Leroy O'Shield.
20 Q Is he an African-American?
21 A Yes, he is.
22 Q Gerald Cooper, is he African-American?
23 A Yes, he is.
24 Q Leroy O'Shield, did he serve in an exempt position?
25 A Yes. He's commander of the 15th district.
WANDA L. BARNES, CSR, RPR
64
Hilbring - direct
1 Q How about No. 204?
2 A James Ivory.
3 Q I talked about Charles Ramsey. Is he African-American?
4 A Yes, is he.
5 Q What exempt position --
6 A He's the deputy superintendent, bureau of staff services.
7 Q I think we were on page 10.
8 THE COURT: You were on James Ivory.
9 MR. FLAXMAN: Okay.
10 BY MR. FLAXMAN:
11 Q James Ivory was --
12 (Brief pause.)
13 THE COURT: Go ahead.
14 BY THE WITNESS:
15 A James Ivory upon being promoted to lieutenant subsequently
16 was promoted to commander of the 7th district and subsequently
17 after that he was demoted.
18 BY MR. FLAXMAN:
19 Q Okay. He's also African-American?
20 A He's African-American, yes.
21 Q How about No. 224?
22 A William Shaw. After being -- he was the deputy chief of
23 investigative services, currently retired.
24 Q Okay. 240.
25 A Donald Torres, he's Hispanic. He was the commander of the
WANDA L. BARNES, CSR, RPR
65
Hilbring - direct
1 14th district, but since has been demoted.
2 Q And William Shaw is African-American?
3 A Yes, he is.
4 Q And then 241 is you.
5 A Myself.
6 Q 249. Do you know who that is or which Hubert Holton that
7 is?
8 A I believe that's Hubert Holton, Jr.
9 Q And did he --
10 A He's African-American. He was commander of the personnel
11 division, commander of neighborhood relations, commander of the
12 3rd district, and now he has been demoted back to the 3rd
13 district.
14 Q How about No. 262?
15 A That's Frederick Miller. He was the commander of area 1
16 detective division, now retired.
17 Q Is he African-American?
18 A Yes, he is.
19 Q 271.
20 A Lorenzo Chew. He was commander of the community service
21 and since then he's retired.
22 Q 282.
23 A Eddie King, deputy chief of patrol, area 4.
24 Q And is he African-American?
25 A He's African-American.
WANDA L. BARNES, CSR, RPR
66
Hilbring - cross
1 Q 287.
2 A Jose Ortega, he's Hispanic. He's the commander of human
3 relations, I believe.
4 Q Okay. 210.
5 A Josea Crossley, after being promoted to lieutenant, he
6 became commander of the public housing section. He took a
7 leave of absence to be a chief of the Chicago Housing Authority
8 Police. And upon his return he was assigned to communications.
9 Q Now, is it your understanding that -- as No. 241 on that
10 list, if there hadn't been a quota superimposed on that list,
11 you would have not been promoted to lieutenant?
12 A That's correct.
13 MR. FLAXMAN: Thank you. Can I have just a minute?
14 (Brief pause.)
15 MR. FLAXMAN: Nothing further, Judge.
16 THE COURT: Your witness, counsel.
17 CROSS EXAMINATION
18 BY MR. FORTI:
19 Q Commander Hilbring, there are currently vacancies in the
20 gang unit that you are a member of; isn't that correct?
21 A Yes, sir.
22 Q Are there vacancies for lieutenant?
23 A Yes, sir.
24 Q How many vacancies?
25 A One.
WANDA L. BARNES, CSR, RPR
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Hilbring - cross
1 Q How long have you had -- suffered that vacancy?
2 A Two years.
3 Q Has that impacted adversely the operations of the gang
4 unit?
5 A Yes, it has.
6 Q In what way?
7 A It has hindered the operation in the fact that the other
8 lieutenant and myself have to pick up the slack. Where we have
9 approximately nine investigative teams, normally we divide that
10 between the two lieutenants. The lieutenant is able to oversee
11 more effectively the investigation, operation of each
12 investigation.
13 Now having one lieutenant to do that, the information
14 sometimes becomes intermixed and it's very difficult to keep up
15 with all the investigations going on simultaneously.
16 Q Then to have that -- to have the gang unit operate more
17 efficiently and optimally, you would like that vacancy filled,
18 wouldn't you?
19 A Yes, I would.
20 Q And as soon as possible?
21 A Yes, I would.
22 Q Are you aware, Commander, that there are vacancies in
23 other parts of the police department?
24 A Yes, I am.
25 Q And are you also aware that the fact that there are those
WANDA L. BARNES, CSR, RPR
68
Hilbring - cross
1 vacancies makes other people's jobs more difficult to complete?
2 A Probably so, yes.
3 Q So would it be better in your opinion that those positions
4 would be filled as well; isn't that right?
5 A That's true.
6 Q Now, you mentioned that it was important for a lieutenant
7 to be able to talk with civilians; is that right?
8 A Yes.
9 Q Commander, are you aware of any testing that tests the
10 ability of a lieutenant or a sergeant for that matter to talk
11 to civilians?
12 A Any testing method?
13 Q Yes.
14 A Outside of college-trained speech classes where you have
15 to give presentations and things of that nature, no, I'm not
16 aware of any adequate test for that.
17 Q Okay. Commander, isn't it true that to perform the job of
18 lieutenant properly, it's important for a lieutenant to know
19 the general and special orders?
20 A Yes, it is.
21 Q And also to have a fair knowledge of the Criminal Code?
22 A Yes, it is.
23 Q And to be knowledgeable of all rules and procedures?
24 A Yes, it is.
25 Q Now, Mr. Flaxman spent a considerable amount of time
WANDA L. BARNES, CSR, RPR
69
Hilbring - cross
1 reviewing a number of individuals who were African-American or
2 Hispanic who have -- either were lieutenants and then promoted
3 in some instances to the exempt ranks; is that right?
4 A Yes, he did.
5 Q Now, were many of those individuals promoted as a result
6 of -- or actually strike that.
7 Were they -- did they become lieutenants as a result
8 of prior litigation?
9 A Yes, they did.
10 Q And in fact as Mr. Flaxman referred, they were the result
11 of a quota that the court imposed; is that right?
12 A Yes, it was.
13 Q Now, many of those individuals ended up going up through
14 the ranks and were promoted far beyond their initial lieutenant
15 position; is that right?
16 A Yes, they did.
17 Q Those individuals then weren't stigmatized in any way,
18 were they?
19 A What do you mean stigmatized?
20 Q Well, it certainly didn't hamper their ability to proceed
21 into -- within the department?
22 A I don't understand that question.
23 Q Well, if we've got a lieutenant who's been in the police
24 department as a result of the quota and that lieutenant
25 obviously has been able to go up the ranks, his career wasn't
WANDA L. BARNES, CSR, RPR
70
Hilbring - redirect
1 harmed, was it?
2 A I disagree.
3 MR. FORTI: Okay. No further questions.
4 REDIRECT EXAMINATION
5 BY MR. FLAXMAN:
6 Q Could you tell us why you disagree?
7 A Because a lieutenant was -- a black lieutenant who was
8 promoted to exempt rank had to incur the wrath of the white
9 captains who were assigned to his particular district, and
10 oftentimes there was always conflict between them and the other
11 white supervisors.
12 Q Now, you talked about that there has been one vacancy in
13 your unit for two years.
14 A Yes.
15 Q One lieutenant -- have you been asking that that vacancy
16 be filled?
17 A Well, it's in the budget. We always request that it be
18 filled.
19 Q Now, those other vacancies in other units of the police
20 department and lieutenant rank, have they also been existing
21 for the past two years?
22 A There's always vacancies in the police department.
23 Q And there's always vacancies in the rank of lieutenant?
24 A Yes.
25 Q To your knowledge has there been any court order that
WANDA L. BARNES, CSR, RPR
71
Brown - direct
1 prohibited the City from filling any of those lieutenant
2 vacancies?
3 A To my knowledge, no.
4 MR. FLAXMAN: Thank you. Nothing further.
5 MR. FORTI: Nothing further, Your Honor.
6 THE COURT: Thank you. You're excused, sir.
7 MR. FLAXMAN: Thank you.
8 (Witness excused.)
9 MR. FLAXMAN: Our next witness, Your Honor, is
10 Lieutenant Maurice Brown.
11 THE COURT: Please raise your right hand, sir.
12 (Witness sworn.)
13 THE COURT: Have a seat.
14 MAURICE E. BROWN, PLAINTIFF'S WITNESS, DULY SWORN
15 DIRECT EXAMINATION
16 BY MR. FLAXMAN:
17 Q Could you state your name again and spell your last name.
18 A My name is Maurice E. Brown, B-r-o-w-n.
19 Q And what's your business or occupation?
20 A I'm a lieutenant of police of the Chicago Police
21 Department.
22 Q Do you remember when you got promoted to be a lieutenant?
23 A May of 1984.
24 Q And did you get promoted after a favorable court ruling?
25 A Yes, I did.
WANDA L. BARNES, CSR, RPR
72
Brown - direct
1 Q And was that the same favorable court ruling that
2 Commander Hilbring got promoted through?
3 A Yes, it was.
4 Q Would you have been promoted to lieutenant but for that
5 court ruling, off that old 1977 list?
6 A No, I would not.
7 Q Now, after you were promoted to lieutenant back in 1984,
8 have you continuously worked as a lieutenant?
9 A I worked as a lieutenant for five years in the 9th
10 district. Shortly in -- in November of 1989 I became the
11 commanding officer, which is no increase in pay, as Public
12 Housing North and a special function of the Chicago Police
13 Department. For two years I was there. And after I left there
14 I was assigned to the 21st district under the leadership and
15 command of Hilbring, and then I left there and now I'm in the
16 CAPS program since April of 1993 in the 10th district.
17 Q So is it fair to say that you're familiar with the work
18 that a Chicago police lieutenant does?
19 A Yes, I am.
20 Q And does that work involve writing clearly and concisely?
21 A Correct. You have to be able to write clearly and
22 concisely due to the fact that all your reports are reviewed by
23 the commander, the deputy chief, the chief of patrol, the first
24 deputy, and if it's a very important significance, OPS, as well
25 as the superintendent of police.
WANDA L. BARNES, CSR, RPR
73
Brown - direct
1 Q Now, you said OPS. Is that the Office of Professional
2 Standards which investigates -- which investigates complaints
3 about police officers, among other things?
4 A Yes. They investigate all brutality cases and excessive
5 force.
6 Q Now, is the ability to understand what people in the
7 community say when they speak important for a lieutenant?
8 A Yes, it is, ever since the CAPS program was started in
9 April of '93.
10 Q And why is that ability to understand oral communication
11 important for a lieutenant?
12 A You establish what you call a public relationship with the
13 community to understand their problems, and you ought be able
14 to listen to their problems, to see which way you can solve
15 them.
16 The way the CAPS structure -- is structured is that
17 each beat is assigned to a certain given beat and they have
18 certain scheduled meetings that they have to have.
19 I attend all CAPS meetings while I'm working, and
20 some officers also attend when they're off duty. You have the
21 first watch, which is the midnight shift; the second watch,
22 which is on days; and the third watch, which works usually 3 to
23 11 or 4 to 12. Most of these meetings are scheduled in the
24 evening hours; so, therefore, you have to have the second watch
25 officers come out, hear their problems, as well as the first
WANDA L. BARNES, CSR, RPR
74
Brown - direct
1 watch, and this way the people get a chance to know who the
2 officers are by first and last name basis.
3 Q In those processes it's important --
4 A To listen.
5 Q Okay. And understand?
6 A And understand, correct.
7 Q Now, were you interviewed by somebody who said they were
8 working for Dr. Gerald Barrett in preparing a promotional test
9 for the position of lieutenant in the Chicago Police
10 Department?
11 A Yes, I was.
12 Q Do you remember when that was -- well, how many times was
13 that?
14 A I was interviewed twice. The first time was just bringing
15 some orders out, general orders, notices and special orders to
16 see -- to try to pick out which ones was important for the rank
17 of lieutenant, but due to the fact that we was working --
18 interviewed while we're working and had to adhere to the radio,
19 I was unable to either -- pick out these orders, and I told
20 them we should make these arrangements down at the training
21 academy, not during working conditions.
22 Q Let me see if we can do that again. Did somebody come out
23 to you when you were on duty in the district?
24 A Correct.
25 Q And were you actively engaged in working as a lieutenant,
WANDA L. BARNES, CSR, RPR
75
Brown - direct
1 listening to radio calls while you were talking to this person?
2 A Yes, I was.
3 Q And did this person want you to review orders and pick out
4 important orders?
5 A Yes.
6 Q Do you remember whether the person was a man or woman?
7 A It was a man.
8 Q How long did you talk to that man?
9 A Less than 15 minutes because he had to be down -- he
10 scheduled a meeting to be there at 4:30. He didn't come until
11 about close to 5:30 and he had to be downtown at quarter to 6.
12 It was impossible to conduct an interview with me.
13 Q So in that 15 minutes that you spent with that man, were
14 you able to pick out the important orders for him?
15 A No, I did not pick them out.
16 Q Now, was there another meeting you had with somebody who
17 said they were working for Dr. Barrett?
18 A Female downtown.
19 Q When you say downtown?
20 A At the training academy.
21 Q Was anybody else at that meeting besides you and that
22 woman?
23 A Just us -- just us two.
24 Q How long did that meeting take?
25 A Approximately 20 minutes, 25 minutes.
WANDA L. BARNES, CSR, RPR
76
Brown - direct
1 Q In that 20 or 25 minutes were you listening to radio
2 calls?
3 A No, I was not.
4 Q You were giving that woman your complete undivided
5 attention?
6 A Correct.
7 Q What did you talk about with her in that meeting?
8 A We talked about the assignment of CR numbers to sergeants.
9 We talked about medical visitations by sergeants. We talked
10 about performance ratings by sergeants.
11 Q Well, did you talk about -- did she ever ask you to tell
12 her what are the things that lieutenants do in the police
13 department?
14 A I don't recall -- I don't recall that.
15 Q Did she ever ask you whether written communication --
16 strike that.
17 Did she ever ask you whether the ability to write
18 clearly and concisely is part of the work you do as a
19 lieutenant?
20 A No, she didn't ask anything about writing ability.
21 Q Did she ask you anything about oral communication skills,
22 the ability to understand what people say, whether that's
23 important for a lieutenant?
24 A No, she did not ask that question.
25 Q Did you have any other conversations with anybody else you
WANDA L. BARNES, CSR, RPR
77
Brown - cross
1 who said they were working for Gerald Barrett, Dr. Barrett?
2 A No, I did not.
3 Q Were you able to -- or did you in those two interviews you
4 told us about give a complete picture of what a lieutenant does
5 to those two people?
6 A I don't know how you go about measuring that. I would say
7 no.
8 Q Okay. Thank you.
9 Now, are you aware that there are vacancies in the
10 lieutenant work force in the City of Chicago?
11 A Only by what I have heard. I don't have access to the
12 budgets.
13 MR. FLAXMAN: Okay. Thank you. Nothing further.
14 CROSS EXAMINATION
15 BY MS. GLINK:
16 Q Lieutenant Brown, would you agree that knowledge of the
17 general orders is important in order to perform your job
18 effectively as a police lieutenant?
19 A Correct.
20 Q Would you also agree that knowledge of the special orders
21 is important in order to be an effective lieutenant of the
22 police?
23 A Correct.
24 Q Would you also agree that some knowledge of the criminal
25 code is important in order to be a police lieutenant?
WANDA L. BARNES, CSR, RPR
78
Brown - cross
1 A Correct.
2 Q And knowledge of the rules and procedures of how the
3 department is organized and operates?
4 A Correct.
5 Q Do you know -- is it -- in your opinion is the more
6 knowledge you know about the special orders and the general
7 orders and the criminal code and the rules of procedures make
8 it easier for you to make decisions on the scene of a crime?
9 A Not necessarily.
10 Q Why do you say that?
11 A Because you got to have experience of the different crime
12 scenes that you go to. You have a certain policy to follow as
13 well as a procedure, and the same thing is notification.
14 Q And the policies are set forth in the general orders and
15 special orders of the department?
16 A Correct.
17 Q You mentioned just now that two individuals from Barrett &
18 Associates spoke with you. Do you know if Dr. Barrett or
19 anybody else on his staff spoke with anybody else about the job
20 of lieutenant?
21 A I don't know.
22 I understand that they was taking a group of
23 sergeants and asking them about the orders that they should
24 know for the rank of sergeant, as well as the lieutenants for
25 the rank of lieutenant examination, and it was -- a lot of
WANDA L. BARNES, CSR, RPR
79
Brown - cross
1 testing was going on and job analysis as far as going to the
2 training academy and grading people for the -- the detective
3 exam is in autumn, and different exams are going on at the same
4 time.
5 Q A lot of activity going on?
6 A A lot of activity going on there.
7 Q Isn't it true, Lieutenant Brown, that the Chicago Police
8 Department has not issued a general order yet on the CAPS
9 program?
10 A CAPS program has a special order on it.
11 Q There is no general order, is there?
12 A I haven't -- I don't recall a general order coming out on
13 CAPS, but there is a special order, and in that CAPS order it
14 defined the role of a watch operational lieutenant and a field
15 lieutenant. And as you know the plan is now to eliminate the
16 rank of captain of police, which I think is a harm to the
17 people that's on the captain's exam now.
18 Q Let me ask you this, Lieutenant Brown. Isn't it true that
19 the CAPS program has not been fully implemented in the police
20 department and that no general order has been issued yet?
21 A I would say no general order has been issued, but we had a
22 pilot program started in 1993 of five districts. It was the
23 7th district, the 10th district, the 15th district, I believe
24 the 25th district, and another district. I can't recall.
25 Q And there are 25 districts, aren't there, in the police
WANDA L. BARNES, CSR, RPR
80
Barrett - direct
1 department?
2 A I'm trying to explain something to you. It was a pilot
3 program issued first. Then after a year and a half they
4 decided to have all of the districts become a CAPS district.
5 MS. GLINK: Thank you.
6 THE COURT: Anything else, Mr. Flaxman?
7 MR. FLAXMAN: No.
8 THE COURT: Okay. Sir, you're excused. Thank you.
9 (Witness excused.)
10 MR. FLAXMAN: Our next witness is Dr. Gerald Barrett.
11 THE COURT: Please raise your right hand.
12 (Witness sworn.)
13 THE COURT: Have a seat.
14 GERALD V. BARRETT, PLAINTIFF'S WITNESS, DULY SWORN
15 DIRECT EXAMINATION
16 BY MR. FLAXMAN:
17 Q Could you state your name and spell your last name,
18 please.
19 A Gerald V. Barrett, B-a-r-r-e-t-t.
20 Q And are you an industrial psychologist?
21 A Yes.
22 Q And have you been an industrial psychologist for almost 40
23 years?
24 A Yes.
25 Q And have you been involved in more than a hundred lawsuits
WANDA L. BARNES, CSR, RPR
81
Barrett - direct
1 involving testing?
2 A I'm not sure it's all involving testing, but I have been
3 in many lawsuits involving testing, yes.
4 Q Do -- you have a full-time academic appointment at a
5 university in Ohio; is that right?
6 A Yes.
7 Q And you are also the principal of a company called Barrett
8 & Associates; is that right?
9 A Yes.
10 Q And that company is involved in, among other things,
11 preparing promotional examinations?
12 A Yes.
13 Q In your work at -- is that the University of Akron?
14 A Yes.
15 MR. FORTI: Objection, Your Honor. It seems to me
16 that Mr. Flaxman hasn't established that the witness is an
17 adverse witness and therefore to the extent all of the
18 questions are leading, I make that objection.
19 THE COURT: I think it's obvious that he's adverse
20 and I'll allow him to ask leading questions.
21 Is there -- is there any contest that he is an
22 adverse witness or you just want the record to reflect it?
23 MR. FORTI: I would at least like the record to
24 reflect it.
25 THE COURT: It reflects it now.
WANDA L. BARNES, CSR, RPR
82
Barrett - direct
1 BY MR. FLAXMAN:
2 Q Are you adverse?
3 A No.
4 Q In your work -- in your work at the University of Akron do
5 you teach graduate students?
6 A Yes.
7 Q And do you supervise research by graduate students?
8 A Yes.
9 Q And have a number of your graduate students gone on to
10 become university professors on their own?
11 A Yes.
12 Q And to also publish articles on their own?
13 A Yes.
14 Q And to continue to work with you in your business at
15 Barrett & Associates?
16 A Some do.
17 Q And is one of them who has continued to do that a man
18 named Douglas Cellar?
19 A Yes.
20 Q Is he one of your graduate students?
21 A Yes.
22 Q And did he obtain a Ph.D. at the University of Akron?
23 A Yes.
24 Q Is he now a professor or on the instructional staff at
25 DePaul University?
WANDA L. BARNES, CSR, RPR
83
Barrett - direct
1 A Yes.
2 Q Do you know what his rank is?
3 A I'm sorry?
4 Q Do you know what his rank is at DePaul?
5 A No, I don't.
6 Q And is he a vice president of Barrett & Associates?
7 A Yes.
8 Q And in your view he's competent and skilled at the work
9 that he does as a vice president of Barrett & Associates?
10 A Yes.
11 Q And is it correct that one of the things that he did as a
12 vice president of Barrett & Associates was to prepare or to
13 assist in the preparation of a response to a report that had
14 been prepared by plaintiff's expert in this litigation?
15 A Yes.
16 Q Let me show you what we have marked as Plaintiff's Exhibit
17 40 and ask you if that is a copy of work done by Dr. Cellar,
18 C-e-l-l-a-r, on behalf of Barrett & Associates in response to
19 plaintiff's expert report in this case?
20 A Yes.
21 Q And is it correct that you submitted that report as part
22 of a larger report that you did?
23 A Yes.
24 Q And did you review the report that Dr. Cellar did before
25 you submitted it as part of your report?
WANDA L. BARNES, CSR, RPR
84
Barrett - direct
1 A Yes.
2 Q And when you reviewed it, did you conclude that it was
3 complete and accurate?
4 A Yes.
5 Q Now, when you prepared that report, you were working for
6 the City of Chicago; is that right?
7 A Yes.
8 Q They were paying you for your time?
9 A Yes.
10 Q And as a matter of fact, they had -- they, the City, had
11 agreed to pay you for your time that you spent in litigation
12 services way back when they hired you to prepare the
13 lieutenant's promotional test; is that right?
14 A Yes. I believe it was part of the contract.
15 Q And was it part of the contract that there would be a set
16 hourly rate for your time?
17 A Yes.
18 Q Did you give the City a reduced hourly rate?
19 A I don't recall what the rate was. I assume it was 250 an
20 hour.
21 Q Well, was that rate of $250 an hour, is that your standard
22 rate for the work that you do?
23 A Yes.
24 Q Now, in addition to the work that you do for Barrett &
25 Associates, you work at the University of Akron and you work,
WANDA L. BARNES, CSR, RPR
85
Barrett - direct
1 do you not, about 40 hours a week in your job at the University
2 of Akron?
3 A Yes.
4 Q And for Barrett & Associates, you also work about 40 hours
5 a week; is that right?
6 A Between 20 and 40 hours a week, yes.
7 Q And that's 20 to 40 hours a week is work for which you get
8 compensated for; is that correct?
9 A The corporation pays me a salary, yes.
10 Q And the corporation is paid for the work you do for
11 clients; is that correct?
12 A Yes.
13 Q And the corporation is paid your customary hourly rate; is
14 that right?
15 A Yes.
16 Q Now, in addition to that report that you prepared in
17 response to plaintiff's expert report, did you also prepare a
18 report for the City of Chicago to explain the work that you did
19 in preparing the lieutenant's test?
20 A Yes.
21 Q And you're of course familiar with the lieutenant's test
22 that you prepared for the City?
23 A Yes.
24 Q Were there three subtests or three parts to that test?
25 A Yes.
WANDA L. BARNES, CSR, RPR
86
Barrett - direct
1 Q Was one part a written multiple choice test of something
2 that you referred to as job knowledge?
3 A Yes.
4 Q Do you remember how many questions there were?
5 A I believe there were 150.
6 Q By multiple choice, could you explain what you mean by
7 multiple choice.
8 A That means you ask a question, an item, and there are five
9 alternatives, only one alternative is correct, and the sergeant
10 in this case chooses the -- one of the responses, one of the
11 five.
12 Q Are those five alternatives -- one of those five
13 alternatives selected on some kind of a computer scoreable
14 sheet?
15 A It's scored by computer and the sergeants mark the
16 responses on a computer scoring sheet.
17 Q Now, in addition to that written multiple choice test of
18 job knowledge, was there another multiple choice component of
19 the test?
20 A There was an in-basket component of the test also.
21 Q Okay. Could you explain to the court what you mean by an
22 in-basket component?
23 A Based upon our job analysis --
24 Q No. Could you answer my question. What's an in-basket?
25 A I thought you wanted me to explain --
WANDA L. BARNES, CSR, RPR
87
Barrett - direct
1 Q I'll withdraw the question. What is an in-basket,
2 Dr. Barrett.
3 A In general an in-basket is a test which simulates to some
4 degree the paper work that a supervisor or manager might deal
5 with during the day. And there are many forms of in-baskets.
6 Q So is it correct that in the in-basket that was
7 administered as part of the lieutenant's test, the sergeant was
8 given 28 or 30 pieces of paper? Is that correct?
9 A Yes. He was given information on paper.
10 Q And from that information that was on paper, was the
11 sergeant required to answer questions?
12 A Eventually, yes, they did answer questions.
13 Q And did the sergeant answer those questions in writing?
14 A The answers were again on a computer scored sheet.
15 Q So were those answers on the computer scored sheet answers
16 to multiple choice questions?
17 A Yes.
18 Q Okay. Was there any essay question on this in-basket
19 test?
20 A By essay I assume you mean did they write out some
21 response.
22 Q Right.
23 A No. The answer is no.
24 Q Now, in addition to the in-basket multiple choice test and
25 the written job knowledge multiple choice test, was there
WANDA L. BARNES, CSR, RPR
88
Barrett - direct
1 something called an oral examination?
2 A Yes. There was an oral briefing exercise.
3 Q Now, the oral briefing exercise, did that also involve
4 reviewing 30 or so written documents?
5 A I'm not sure it was 30, but they reviewed some written
6 documents, that's correct.
7 Q And did the sergeant have a particular amount of time in
8 which he or she was permitted to review the documents?
9 A I recall it was 25 minutes.
10 Q Okay. And then after that as you recall 25 minutes, was
11 the sergeant required to make an oral presentation?
12 A That's correct.
13 Q Was that oral presentation made to live persons?
14 A No. It was made to three tape recorders, but a live
15 person was there monitoring the process.
16 Q Did anybody ask questions of the sergeant during that oral
17 presentation?
18 A There is no interaction between the tester and the
19 sergeant during that process, the -- on the instructions.
20 Q Now, it's correct then that nothing on that oral component
21 involved the ability to understand what people said to you? Is
22 that right?
23 A The instructions were read to the sergeants, so they had
24 to understand the instructions as read to them.
25 Q Well, are you telling us that in your opinion the oral
WANDA L. BARNES, CSR, RPR
89
Barrett - direct
1 interview measured the sergeant's ability to understand oral
2 instructions?
3 A I am saying that from what we know is that it is very
4 similar between written and oral instructions and
5 understanding. In other words, if someone can understand oral
6 instructions, that relates very highly to understanding written
7 instructions. So what I'm saying is the medium, in other
8 words, the processing goes on in the brain, the central
9 processor, and how it comes in is not as relevant as how it's
10 processed once it comes in. It can come in oral, it can come
11 in written form.
12 Q Is Dr. Cellar familiar with the type of oral examination
13 that was given as part of the lieutenant's test in Chicago?
14 A Yes.
15 Q Do you know that Dr. Cellar has concluded that the ability
16 to listen to oral communications is not measured by any part of
17 the written job knowledge test, the multiple choice in-basket
18 test or the oral -- or the oral exercise?
19 A That's correct. It's not measured directly.
20 Q And is it also correct that the ability to write clearly
21 and concisely is not measured by the written job knowledge
22 test?
23 A No. We have no written essay exam on that test.
24 Q And the ability to write clearly and concisely is not
25 measured by the multiple choice in-basket test?
WANDA L. BARNES, CSR, RPR
90
Barrett - direct
1 A That's correct. There is no essay exam on the in-basket.
2 Q And the ability to write clearly and concisely isn't
3 measured by the oral examination; is that correct?
4 A That's correct.
5 Q Now, is it also correct that there are, oh, 24 knowledge
6 skills and abilities into which the job of Chicago police
7 lieutenant can be classified?
8 A Well, it's according to what scheme you use. There's a
9 number of ways you could classify it.
10 Q Well, is one way to classify it result in 24 categories?
11 A I don't recall at this point the number of categories.
12 Q Well, could you take a look at Plaintiff's Exhibit 40 and
13 page -- what's numbered 44 on that, the bottom paragraph.
14 A I'm sorry. What paragraph did you refer to?
15 Q Well, the paragraph that starts, "Douglas F. Cellar at
16 Barrett & Associates categorized KSAs." Do you see that?
17 A Yes, identified in the H.R. Strategies report.
18 Q Now, after reading that do you have a present recollection
19 of whether or not it is possible to divide up the knowledge
20 skills and abilities of the job of police lieutenant into 24
21 categories?
22 A Yes. This is what was done by H.R. Strategies.
23 Q Is H.R. Strategies a competitor -- strike that.
24 Was H.R. Strategies a competitor of yours back in
25 1994?
WANDA L. BARNES, CSR, RPR
91
Barrett - direct
1 A I don't know if it competed or not on anything, but I -- I
2 know we're in the same business.
3 Q And as a matter of fact H.R. Strategies performed a job
4 analysis of the position of lieutenant in the Chicago Police
5 Department in late 1993 and early 1994; is that right?
6 A Yes.
7 Q And you had a chance to review their job analysis; is that
8 right?
9 A That's correct.
10 Q And is it correct that their job analysis was
11 professionally done?
12 A Yes.
13 Q And is it correct that their job analysis which identified
14 24 knowledge skills and abilities is one way of classifying the
15 knowledge skills and abilities of the Chicago -- the job of a
16 Chicago police lieutenant?
17 A I agree it's one way.
18 THE COURT: What page are you referring to?
19 MR. FLAXMAN: It's numbered 44. It's actually page
20 3, but they have -- the first page is No. 42.
21 THE COURT: Okay. I got it.
22 BY MR. FLAXMAN:
23 Q Now, is it correct that the tests that Barrett &
24 Associates designed for promotions in Chicago Police Department
25 to lieutenant does not measure three of the 24 knowledge skills
WANDA L. BARNES, CSR, RPR
92
Barrett - direct
1 and abilities that were identified in the H.R. Strategies job