115
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. ) 2:00 p.
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
116
Hardy - direct
1 AFTERNOON SESSION
2 MR. FLAXMAN: I assume we are going to continue with
3 plaintiff's case or --
4 THE COURT: I think that's where we left off. So
5 call your next witness, Mr. Flaxman.
6 MR. FLAXMAN: Our next witness is Sergeant Judge
7 Hardy.
8 THE COURT: Would you please raise your right hand.
9 (Witness sworn.)
10 THE COURT: Please take a seat.
11 JUDGE F. HARDY, PLAINTIFF'S WITNESS, DULY SWORN
12 DIRECT EXAMINATION
13 BY MR. FLAXMAN:
14 Q Could you state your name and spell your last name for the
15 court reporter.
16 A Sergeant Judge F. Hardy, H-a-r-d-y.
17 Q Would you stay a little bit further back.
18 A Okay.
19 Q What's your business or occupation?
20 A Sergeant, Chicago Police Department.
21 Q How long have you been a sergeant?
22 A Since November 1, 1990.
23 Q And how long have you been a police officer?
24 A Since 22 October 1973.
25 Q Now, what kind of work do you do as a sergeant?
117
Hardy - direct
1 A Right now I'm a field sergeant assigned to the 4th
2 district.
3 Q Does that mean you're out in the community?
4 A Correct.
5 Q Do you -- in your work as a Chicago police officer and a
6 Chicago police sergeant, have you observed what lieutenants do?
7 A Yes, I have.
8 Q Have you ever had to act as a watch commander?
9 A For two years I worked in the Public Housing North as the
10 sergeant. I was the watch commander during that period of
11 time.
12 Q Now, from what you know about what a lieutenant does, is
13 the ability to understand what citizens say important for what
14 a lieutenant does?
15 A I would say very.
16 Q Is the ability to write clearly and concisely important
17 for what a lieutenant does?
18 A Yes.
19 Q Now, do you remember where you rank on the final -- did
20 you take -- strike that.
21 Did you take the most recent promotional test to be a
22 lieutenant?
23 A Yes, I did.
24 Q And did you study for that test?
25 A Yes, I did.
118
Hardy - direct
1 Q What did you do to study for the test?
2 A Well, I would say that I devoted about four hours a days
3 for almost a year studying for that exam.
4 Q And did you know the exam was coming before it was
5 announced?
6 A Well, there were rumors that the exam would soon be posted
7 or soon be announced.
8 Q And when you studied, what were you trying to study?
9 A I was trying to study material that I thought would be
10 relevant to being a lieutenant for the Chicago Police
11 Department.
12 Q And then when you took the test and got your results back,
13 did you learn where you placed on the final list?
14 A Yes.
15 Q And where is that?
16 A 400 and something?
17 Q Now, in front of you, you have some papers; is that right?
18 A Yes.
19 Q And could you tell the court what those papers are.
20 A These papers are part of the in-basket examination or part
21 of the lieutenant's promotional exam which was called the
22 in-basket portion.
23 MR. ROCKS: Your Honor, before this proceeds any
24 further, Mr. Flaxman and I have agreed that these after this
25 testimony and the other testimony today be filed under seal.
119
Hardy - direct
1 MR. FLAXMAN: Subject, of course, to Your Honor's
2 approval.
3 MR. ROCKS: Of course.
4 THE COURT: That's fine.
5 BY MR. FLAXMAN:
6 Q And is what you have before you, which we're going to put
7 into an envelope and call Plaintiff's Exhibit 41, is that the
8 same test that you took, a copy of the same test that you took?
9 A It appears to be.
10 Q Could you describe for us what those papers are.
11 A These papers appear to be simulated in-basket exercises.
12 Q And what do you have to do in that simulated in-basket
13 exercise to take the test?
14 A You're supposed to go through these papers, arrange them
15 and then make calls or decisions based on arrangement of these
16 papers.
17 Q And those decisions or calls were multiple choice
18 questions?
19 A Yes.
20 Q Now, you took that test; is that right?
21 A Yes.
22 Q And you're familiar with what lieutenants do; is that
23 right?
24 A Yes.
25 Q Is the kind of work that you did to take that test the
120
Hardy - direct
1 kind of work that a lieutenant in the Chicago Police Department
2 does?
3 A I would say no.
4 Q Why is that?
5 A Well, firstly, the first part of the test, we were
6 explained that if we need to, we can spread these papers out
7 and work on the floor.
8 Q Have you ever seen a Chicago police officer --
9 A In 24 years I have never seen a lieutenant on the floor
10 doing any of his paperwork.
11 Q Aside from putting the paperwork on a floor, what else is
12 different than what a lieutenant does?
13 A As I recall, I remember some of the things that they asked
14 you to do, such as scheduling and those kind of things that a
15 lieutenant doesn't do.
16 Q Who does scheduling?
17 A We have desk people who are assigned clerk duties and desk
18 officer jobs who ultimately do those sheets. The lieutenant
19 just okays them and makes recommendations.
20 Q Is there anything else about the in-basket exercise that's
21 not the kind of work that you've seen a Chicago police
22 lieutenant do?
23 A Basically none of the things that we went over in this
24 in-basket have I ever seen a lieutenant in a police department
25 do.
121
Hardy - cross
1 MR. FLAXMAN: Thank you. Nothing further.
2 CROSS EXAMINATION
3 BY MR. FORTI:
4 Q Sergeant Hardy, you testified that you studied several
5 hours a day for this test; is that right?
6 A That's correct.
7 Q For approximately what period of time?
8 A I'm sorry. What do you mean?
9 Q For how many days?
10 A I studied --
11 Q Was it days or weeks?
12 A I studied six or seven days a week.
13 Q Were you part of any study group?
14 A Yes, I was. I was a part of three different study groups.
15 Q This was a difficult test, was it not?
16 A I would say it was difficult.
17 Q It was one of the most difficult tests you've ever taken,
18 isn't it?
19 A No.
20 Q No? The fact that the test was difficult, could that
21 explain in part why you did poorly on the test?
22 A No. I think if you asked me why, I think that none of it
23 related to the jobs of a duty of a lieutenant, that I got
24 prepared to do or take a test that I thought would be job
25 related.
122
Hardy - cross
1 Q Now, am I correct that before taking the test you were
2 given a reading list as to what the subject matters were going
3 to be on the test? Is that right?
4 A That's correct.
5 Q Now, did that reading list identify things that you
6 concede relate to the job of a lieutenant?
7 A Some of the material, yes.
8 Q But none of those materials were in the in-basket portion;
9 that's your testimony?
10 A I'm saying that the majority of the test or the most
11 consuming part of this test in my opinion did not relate to the
12 duties of that of a field lieutenant or a watch commander.
13 Q Now your testimony is not just the in-basket, but other
14 parts --
15 A No. I'm only testifying to the in-basket. That's what
16 you ked me.
17 Q All right. Let me make sure I understand your testimony.
18 As to the in-basket your testimony is that none of it relates
19 to the job of what a lieutenant actually does; is that right?
20 A I'm saying the majority of the test, of the in-basket that
21 I took, the most consuming part in my opinion did not relate or
22 was not what an actual field lieutenant or a watch commander
23 does.
24 Q All right. How does it compare to what -- do the special
25 orders identify what lieutenants are supposed to do?
123
Hardy - cross
1 A Some of them give guidelines, yes.
2 Q All right. Were --
3 A Or responsibilities. They give responsibility, yes.
4 Q Based on your most recent review of the in-basket, did
5 those special orders play a role?
6 MR. FLAXMAN: Object to the form of the question.
7 THE COURT: Overruled.
8 BY MR. FORTI:
9 Q Were the special orders part of the in-basket that you
10 recently reviewed?
11 A They gave us mock orders. They were not the orders that
12 were from the police department's list. These were orders that
13 they simulated.
14 Q Are those orders similar to the orders that are in place
15 that govern in part the conduct of lieutenants?
16 A Yes, but I think when you read it and you had to read the
17 entire order, that there were some very -- variations.
18 Q Could you give me an example?
19 A Not offhand. I mean if I had an opportunity to go through
20 this, I probably could.
21 Q Okay. You also mentioned that to the best of your
22 knowledge no lieutenant performed scheduling; is that right?
23 A That they don't do the worksheets, no, they don't. To my
24 knowledge they do not do the worksheets. We have a clerk or
25 desk officer who does the worksheets and the lieutenant simply
124
Hardy - cross
1 or merely gives him the time slips for the people who are going
2 to be off and then the clerk puts the sheets together for the
3 following day.
4 Q And what portion of the in-basket test if you can be
5 specific tells you to schedule?
6 A Am I to look through this and pick it out?
7 Q As I understand it, your counsel told you -- said that
8 there were sheets of paper in front of you. I assumed that you
9 had looked at them.
10 A Well, since we returned from lunch I haven't had an
11 opportunity to pick out which portion or which part of this
12 test was that portion of the exam.
13 Q All right. Now, Sergeant Hardy, at the conclusion of the
14 exam am I correct that you had an opportunity to lodge
15 objections over any portions of the test that you found
16 objectionable for any reason? Is that correct?
17 A I have no knowledge of it.
18 Q Did anyone tell you at the end or -- after the exam that
19 you could lodge objections to any portion of the test?
20 A No.
21 Q That's not true?
22 A Not to my knowledge.
23 Q Now, Sergeant Hardy, you don't have any degrees in
24 industrial psychology, do you?
25 MR. FLAXMAN: Objection. He hasn't been offered as
125
Hardy - redirect
1 an expert.
2 THE COURT: I'll let him answer.
3 BY THE WITNESS:
4 A No, I don't.
5 BY MR. FORTI:
6 Q And you haven't had any experience in test formations,
7 have you?
8 A No.
9 MR. FORTI: No further questions.
10 REDIRECT EXAMINATION
11 BY MR. FLAXMAN:
12 Q Let me show you -- I only have one copy -- what I have now
13 marked as Plaintiff's Exhibit 42. Is this a copy of the
14 reading list that was issued for the lieutenant's test that you
15 took?
16 A Yes, it is.
17 Q And did you read all of that material to study for the
18 test?
19 A Yes, I did.
20 Q Now, one of those things is something called "Together We
21 Can, a Strategic Plan for Reinventing the Chicago Police
22 Department." That's on page F 7 and it has a number 4 next to
23 it.
24 Do you see that?
25 A Yes.
126
Hardy - redirect
1 Q Is that about the CAPS program?
2 A Yes.
3 Q And you studied about the CAPS program to prepare for the
4 test; is that right?
5 A Yes.
6 MR. FLAXMAN: Thank you.
7 Nothing further.
8 THE COURT: Sergeant, I just have one question. I'm
9 not sure what you did study besides what counsel just asked you
10 about to take the test. Can you tell me a little more about
11 that?
12 THE WITNESS: Well, they issued -- the police
13 department has a list of reading material and they told us that
14 this material would be used or questions would be taken from
15 this material that was issued for us to read. That's what the
16 basis of the test would be from.
17 THE COURT: All right. So you basically read what
18 was on the reading list?
19 THE WITNESS: Yes.
20 THE COURT: Everything?
21 THE WITNESS: Yes.
22 THE COURT: Okay. Did you do anything else?
23 THE WITNESS: Well, I looked at the last two
24 lieutenant exams that were given and I participated in three
25 other study groups that talked about how to take tests, the
127
Hardy - redirect
1 kinds of questions that they were probably asking in this exam.
2 We looked at also one other test that talked about or
3 that dealt with the kinds of tests that they were taking out in
4 terms of what they considered the most correct answer test,
5 which is the kind of test that they gave this time.
6 THE COURT: So you practiced taking multiple choice
7 tests?
8 THE WITNESS: Yes.
9 THE COURT: Did you do any oral practicing?
10 THE WITNESS: Yes. Yes. And I also paid to take a
11 class on in-basket. One of the groups gave an in-basket
12 seminar that we paid, and I took that course.
13 THE COURT: So you knew what types of -- what the
14 components were of this test you were about to take?
15 THE WITNESS: Yes.
16 THE COURT: All right. Thanks.
17 Anything that you want to ask based on what I have
18 asked?
19 MR. FORTI: No, Your Honor.
20 MR. FLAXMAN: No, Your Honor.
21 THE COURT: Okay. Sergeant, you're excused. Thank
22 you.
23 MR. FLAXMAN: Our next witness is Sergeant Starks.
24 THE COURT: Please raise your right hand.
25 (Witness sworn.)
128
Starks - direct
1 THE COURT: Please have a seat.
2 Are you stipulating to the addition of all these
3 exhibits?
4 MR. FLAXMAN: Yes. I believe --
5 MR. ROCKS: Yes. We're going to work that out
6 hopefully at the end of the day.
7 THE COURT: Okay.
8 DANA V. STARKS, PLAINTIFF'S WITNESS, DULY SWORN
9 DIRECT EXAMINATION
10 BY MR. FLAXMAN:
11 Q Could you state your name again.
12 A My name is Sergeant Dana, D-a-n-a, V middle initial,
13 Starks, S-t-a-r-k-s.
14 Q What's your business or occupation?
15 A I am a sergeant of police for the Chicago Police
16 Department.
17 Q How long have you been employed by the Chicago Police
18 Department?
19 A I started on the Chicago Police Department 1 November
20 1977.
21 Q And when did you become a sergeant?
22 A 1 December 1988.
23 Q And did you take the most recent lieutenant's promotional
24 test?
25 A Yes, I did.
129
Starks - direct
1 Q Did you study for that test?
2 A I studied very hard.
3 Q What did you do to study for the test?
4 A Well, just like Sergeant Hardy, I was in three study
5 groups. I took an in-basket class, and one of the study groups
6 I was in also had the practicing of the oral exam part of the
7 test.
8 Q Now, what kind of work do you do as a sergeant? Are you
9 inside or outside?
10 A Right now I am a field sergeant in the district 5 of
11 Chicago Police Department.
12 Q Is district 5 one of the busier districts?
13 A Extremely busy district.
14 Q Are there some districts that are more busy than others?
15 A Of course, there are some districts that have more crime
16 than others.
17 Q Are there particular parts of the city where those
18 districts are that have more crime than others?
19 A Repeat that. I'm sorry.
20 Q Are there particular parts of the city?
21 A Yes, there are particular parts of the city.
22 Q Are those the poorer parts of the city?
23 A Poorer in some respect, yes. But, you know, within those
24 communities there are communities, people that live there that
25 are pretty well off, too.
130
Starks - direct
1 Q Is it correct that this -- the percentage of minority --
2 or of African-American police officers is higher in those high
3 crime districts than it is in low crime districts?
4 A Yes, that's true.
5 Q Now, are you familiar -- in your work as a police sergeant
6 and police officer have you become familiar with the work that
7 lieutenants do?
8 A Yes, I have.
9 Q And is that from watching what lieutenants do?
10 A It's from watching what lieutenants do on a daily basis
11 while I'm working, and also knowing that I wanted to go to the
12 next rank. You know, one of the best ways to learn, too, is
13 also by observation. So you would also observe the duties that
14 lieutenants do because you would hope that one day you would be
15 performing those duties.
16 Q Why do you want to go to the next rank?
17 A Well, the reason I want to go to the next rank is first of
18 all like most people it's for my own self -- self-esteem. I
19 know I am a competent and capable sergeant. I know I'm an
20 excellent sergeant in fact. I know I service my community and
21 I service it well, and when I say that I mean the entire
22 community.
23 I think I have all the abilities that are needed to
24 become a lieutenant of police and also all the abilities to
25 become a superintendent of police.
131
Starks - direct
1 Q Now, you have before you the paperwork that made up the
2 oral component of the lieutenant's test.
3 A Yes, I do.
4 Q Now, I understand that there were three different packets
5 of material for the oral board; is that right?
6 A As I understand it, there were different scenarios that
7 were given.
8 Q Do you have in front of you the scenario that you had?
9 A Yes, I do. I have it.
10 Q Is there any way to identify that, like without disclosing
11 the name?
12 Can I see which one you is yours?
13 (Brief pause.)
14 MR. FLAXMAN: I think that we'll be placing that into
15 an envelope that we'll be referring to as Plaintiff's Exhibit
16 43.
17 BY MR. FLAXMAN:
18 Q Now, could you tell us what was involved -- and I'll give
19 it back to you -- in the oral component of the examination?
20 What did you have to do?
21 A As I recall, we were given about 18 pieces of paper. We
22 were -- we were asked to review these 18 pieces of paper,
23 basically give a brief synopsis of what we read, and then we
24 were supposed to envision ourselves as the watch commander
25 attending roll call and dissemination of this information.
132
Starks - direct
1 Q Now, the material you had to read was about things that
2 sort of relate -- that relate to what police do or what police
3 see; is that right?
4 A Well, you know, we deal with gangs and --
5 Q Was there material about gangs?
6 A The material I had was about gangs, yes.
7 Q And the exercise that you had to do, to read the material
8 and then give a speech -- is that a fair summary of what you
9 had to do?
10 A As far as what they were asking us to do?
11 Q Right.
12 A Yes, basically, yes.
13 Q Is that the kind of work that you have seen Chicago police
14 lieutenants do?
15 A No.
16 Q And how is it different than the work you see lieutenants
17 do?
18 A Because there are no times that a lieutenant is asked to
19 go before roll call. First prior to roll call reading 18
20 pieces of paper, give a brief synopsis, gather a brief idea of
21 what he wants to give or disseminate to the troops and then go
22 out and do that.
23 Basically the only thing that a watch commander does
24 at roll call is, No., 1, call the troops to stand at attention
25 where he inspects them, inspects that their uniforms is proper,
133
Starks - direct
1 the weapons are proper, and, 2, they may read from what we call
2 a commanding officer's book or in short CO book where
3 information in a teletype type nature, preprinted nature is
4 already there and that lieutenant or captain reads directly
5 from what's preprinted.
6 Q When you say preprinted, are you referring to directives
7 that come from police headquarters?
8 A Whether it's a general order, a special order, a
9 department notice, a teletype receiving a general order or
10 adding an addition to a general order, it's preprinted and it's
11 read by that lieutenant from that preprinted material.
12 Q Have you ever been seen a situation where a commander
13 gives a lieutenant a packet of information and asks the
14 lieutenant to summarize it in a speech at roll call?
15 A It's not done period.
16 MR. FLAXMAN: I have nothing further. Thank you.
17 CROSS EXAMINATION
18 BY MS. GLINK:
19 Q Sergeant Starks, you testified previously that you studied
20 very hard for the test.
21 A Yes, ma'am.
22 Q And I take it that you studied for a long time for that
23 test?
24 A Extremely long time, yes.
25 Q Do you also agree that the test was a difficult test?
134
Starks - direct
1 A To some degree, yes.
2 Q Could that explain why you got the results on the test
3 that you did receive?
4 A No way could it explain that.
5 Q In your opinion what was wrong with the test?
6 A Are we talking about the entire test or are we just
7 talking about what I'm talking about now, the oral part of the
8 exam.
9 Q The entire test.
10 A Well, in my opinion -- first of all, let me again just
11 deal with the oral part of the exam. The oral part of the exam
12 again did not encompass any duties that a field lieutenant or
13 watch commander would perform.
14 To give an example, the last exam, the last exam had
15 a -- had a written essay portion of the exam which tested
16 knowledge about the exam, okay, which you had to write out --
17 it gave you a scenario, said write it out, write out what you
18 would do, and it related directly to duties that a field
19 sergeant or a field lieutenant does.
20 Q Let me stop you there, Sergeant. Would it be fair to say
21 overall you felt that the test did not -- wasn't job related?
22 A No, I don't think the test was job related.
23 Q And did you ever make any formal complaint to the police
24 department complaining about the fact that the lieutenant's
25 test wasn't job related?
135
Kimber - direct
1 A No, ma'am, I did not.
2 Q Do you have a degree in industrial psychology, Sergeant
3 Starks?
4 A No, ma'am, I do not.
5 Q Have you had any experience in developing tests?
6 A No, ma'am, I have not.
7 Q Mr. Starks -- Sergeant Starks, are you a plaintiff in this
8 case?
9 A Am I a plaintiff? No, ma'am I am not.
10 MS. GLINK: Thank you. I have nothing further.
11 MR. FLAXMAN: No redirect. Thank you.
12 THE COURT: You're excused. Thank you very much.
13 THE WITNESS: Thank you, Your Honor.
14 (Witness excused.)
15 MR. FLAXMAN: Next witness is Sergeant Vance Kimber.
16 THE COURT: Please raise your right hand.
17 (Witness sworn.)
18 THE COURT: Have a seat.
19 VANCE T. KIMBER, PLAINTIFF'S WITNESS, DULY SWORN
20 DIRECT EXAMINATION
21 BY MR. FLAXMAN:
22 Q Would you state your name, please, and spell your last
23 name.
24 A Vance T. Kimber, K-i-m-b-e-r.
25 Q And what's your business or occupation?
136
Kimber - direct
1 A I am a sergeant of police.
2 Q How long have you been a police officer?
3 A I have been a police officer since February 19, 1973.
4 Q For how long have you been a sergeant?
5 A I have been a sergeant since July 1st, I think it is,
6 1995, or June 1st, 1985.
7 Q And what's your present assignment?
8 A I'm assigned to management and labor affairs section of
9 the Chicago Police Department.
10 Q Is that what's called an inside job?
11 A Yes, it would be.
12 Q Before getting this inside job did you have an outside
13 job?
14 A Yes, I did.
15 Q What did you do on the outside?
16 A I worked the 12th district as a sergeant. I worked the
17 11th district, Harrison and Kedzie as a sergeant. I worked
18 communications as a sergeant. I worked the 3rd district as a
19 sergeant.
20 Q Are those what's known as busy districts?
21 A The 3rd district and the 11th district were busy
22 districts.
23 Q What makes a district a busy district?
24 A Well, to give you an example, just for the judge so he can
25 understand, busy districts receive more calls and more crimes
137
Kimber - direct
1 than nonbusy districts. An example is that a district on the
2 north side may receive 2 to 300 calls for service during a
3 24-hour period; whereas, a busy district on the south side,
4 example Robert Taylor, I spent ten years in Robert Taylor,
5 Robert Taylor would receive a thousand calls a day as opposed
6 to 2 to 300, and then the crime index would be higher in those
7 districts.
8 Q Do the police follow different practices in busier
9 districts than they do in less busy districts?
10 A Yes, they do.
11 Q And why is that?
12 A Because of the busy district being busy you tend to cut
13 corners and do things a little bit different. I think the
14 superintendent said earlier this morning that you have formal
15 and informal organizations inside, and that takes place also in
16 busy and nonbusy districts.
17 Q Now, are those busier districts predominantly
18 African-American and Hispanic?
19 A Yes. When you look at the crime index for the city, the
20 busy districts, 2, 10, 7, 11, are predominantly black and
21 Hispanic and socially and economically are usually on the
22 lower end of the scale in those districts.
23 Q Are the police officers who are assigned to those
24 districts predominantly black and Hispanic?
25 A Usually the higher percentages of police officers assigned
138
Kimber - direct
1 to those police districts are black and Hispanic also.
2 Q Now, did you take the most recent lieutenant's test?
3 A Yes, I did.
4 Q Did you study for it?
5 A Yes, I did.
6 Q Did you study just as hard as Sergeant Hardy and Sergeant
7 Starks?
8 A I thought I studied harder.
9 Q And how well did you do on that test?
10 A I didn't do well.
11 Q Do you know what your number is?
12 A I believe it was 474.
13 Q Now, you have in front of you, do you not, the written
14 multiple job knowledge test?
15 A Yes, I do.
16 Q And we're going to put that into an envelope later and
17 call it Plaintiff's Exhibit 44.
18 And is that test that's in front of you the same test
19 that you took?
20 A It appears to be.
21 Q Now, when's the first time after you took the test that
22 you had a chance to look -- to review those questions?
23 A Today.
24 Q About --
25 A About 15 minutes ago.
139
Kimber - direct
1 Q Okay. And when you looked at those questions, are there
2 any questions in there that you're able to find or identify in
3 the 15 minutes where the practice is different in a busier
4 district than a less busy district?
5 A Just -- yes, it was.
6 Q Were you able to find -- were you able to find one?
7 A Yes, I was.
8 Q And how many questions did you look through? Did you stop
9 when you found that one?
10 A When I found one, I stopped. I did.
11 Q And what question number is that?
12 A I started toward the middle and I went to -- I got to 80.
13 That's on page 35.
14 Q Okay. Now, I don't know if the City cares if we disclose
15 question 80 or if that's inappropriate or what we're going to
16 do about that.
17 MR. ROCKS: If it's a few questions, we don't oppose
18 it.
19 BY MR. FLAXMAN:
20 Q What does question 80 ask about?
21 A It talks about a non-traffic summons issued for public
22 indecency.
23 Q And is there a particular general order which -- or
24 special order which relates to that question?
25 A There is an order that covers -- we have an order that
140
Kimber - direct
1 covers almost everything. So there is an order that covers
2 public indecency.
3 Q And there's a way to deal with public indecency that's by
4 the book in accordance with that order; is that right?
5 A Yes, it would be.
6 Q And what is that way?
7 A They give you several multiple choice answers here, but
8 the difference between what would take place and the question
9 and what takes place in a busy district is that it's -- and the
10 answer is not in the book. What takes place in a busy district
11 is that the person is told that they don't have time to print
12 them.
13 The question refers to --
14 Q You could read the question.
15 A Oh, okay. The question says judicial non-traffic summons
16 was issued to Mark Hill for public indecency. Mark Hill
17 appeared in court and after hearing --
18 Q You can stay a little bit further back.
19 A And after hearing facts sufficient for a finding of guilty
20 the court has ordered that Mark Hill report to a detention
21 facility to be fingerprinted and photographed. Desk sergeant
22 Cooper ensures that the prints and photographs are taken of
23 Mark Hill and asked watch operations lieutenant Jones for
24 further instructions. Watch operations lieutenant Jones should
25 instruct the desk sergeant Cooper what to do. And then it
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1 gives five different explanations.
2 Well, in a busy district -- and as I've said, I've
3 worked in a busy district. In the 2nd district I spent 10
4 years. When someone would come in and say they needed to be
5 fingerprinted and photographed for this, we would tell them
6 that we did not have time, and in fact over a period of time it
7 would just be we don't fingerprint you here. You go downtown
8 to get fingerprinted.
9 Q Have you had -- that would be handled differently for
10 somebody in a busy district than in a nonbusy district?
11 A In a nonbusy district, correct.
12 Q You don't know if you looked at the whole -- the rest of
13 the test you would find any other questions like that, do you?
14 A I would have to spend time to look at the entire booklet.
15 Q In addition to looking at the lieutenant's written
16 multiple choice test today before court did you ever have a
17 chance to look at the multiple choice test given in the
18 sergeant's -- for the sergeant's promotional test?
19 A Yes, I did.
20 Q Was that the same kind of written multiple choice test
21 about rules and regulations and things like that?
22 A Yes, it was.
23 Q And did you have a little more time to look at those
24 questions?
25 A Yes, I did.
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1 Q Were you able to find any questions at all in the time you
2 had to look at the test that were questions that would be
3 answered differently in a busy district than a nonbusy
4 district?
5 A Yes, I did.
6 MR. FORTI: Objection, Your Honor, as to the
7 relevancy of the sergeant's exam, which is not at issue, and
8 there is a big leap I believe Mr. Flaxman is making between
9 test questions that were reviewed by the sergeant -- the
10 sergeant's exam and leaping and making that same assumption as
11 to the lieutenant's exam.
12 THE COURT: I don't think he's making any assumptions
13 at this point. I'll overrule the objection.
14 BY MR. FLAXMAN:
15 Q Did you find more than one question that would be answered
16 where the practice would be different in a busy district than
17 in a nonbusy district?
18 A Yes, I did.
19 Q Do you remember how many questions you actually had a
20 chance to look at, how many you found that were different in
21 busy versus nonbusy?
22 A Several. After I found several I stopped.
23 Q Now, in addition to being a police sergeant, are you
24 involved in any police organizations?
25 A Yes, I am.
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Kimber - direct
1 Q And what police organizations are you involved in?
2 A I am the president of the Guardians Police Association,
3 which is an African-American male female police organization
4 that's been around for about 28 years.
5 Q And is that limited just to people who are presently
6 Chicago police officers?
7 A No. It's sworn and -- sworn police officers, retired and
8 active.
9 Q So -- and are you -- do you know everybody who is a member
10 of the Guardians?
11 A Yes, I do.
12 Q Are you -- in the course of knowing everybody who is a
13 member of the Guardians, have you become familiar with how long
14 black police officers work on the job before retiring?
15 A Yes, I do.
16 Q Is there some magic number of years before you retire?
17 A To get your full pension you have to go 32 years of the
18 service. To get the maximum, I should say, is 32 years of
19 service. 20 years of service, 50 years of age gets you the
20 pension. 32 years of service gets you your full entire maximum
21 pension of 75 percent.
22 Q In your experience do black police officers stay on the
23 job after those 32 years of service?
24 A No, they usually do not.
25 Q Now --
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Kimber - direct
1 A On an average I should say. Some do, some don't, but on
2 average, no, they do not.
3 Q Let me show you what's been marked as Plaintiff's Exhibit
4 45, and I'll tell you that the parties will agree after they
5 have had more of a chance to check it that this accurately
6 summarizes a computer disk produced by the city which
7 identifies field lieutenants -- lieutenants working in the
8 grade of lieutenant who are African-American or Hispanic as of
9 sometime in the last week.
10 MR. ROCKS: Your Honor, we would like to check it
11 against the data set and we can do that when we submit post
12 findings of fact.
13 THE COURT: Very well. Why don't I accept it
14 conditionally then.
15 MR. FLAXMAN: Okay.
16 BY MR. FLAXMAN:
17 Q How many of the -- well, who on that list do you believe
18 is going to retire in the next two years or has already
19 indicated that they will or are in the process of retiring?
20 A Officer -- Lieutenant Bearden just retired or will retire.
21 -- will officially retire I think this month. Lieutenant Digby
22 and Lieutenant Lemon, Robert Lemon. And the last lieutenant on
23 the list, Lieutenant White has 35 years of service, so he
24 technically is over the 32, so he can retire at any time and
25 has mentioned that he probably will too also.
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Kimber - direct
1 So four. Definitely three, possibility of four.
2 Q Is there any others that you expect to retire?
3 A Torres, yes Torres, Donald Torres on the list, also has 35
4 years of service, as well as Nolan Hawkins.
5 As I mentioned, once you get to 32 you can't increase
6 your pension by any number.
7 Q Just so that the record is more coherent, can you just
8 count for us how many people there are on that list. You named
9 six that you think are going to retire. How many are there?
10 A 46.
11 MR. FLAXMAN: Okay. Thank you. Nothing further.
12 CROSS EXAMINATION
13 BY MR. FORTI:
14 Q Sergeant Kimber, you were informed, were you not, as other
15 people that were taking the test, that you should study certain
16 special orders and general orders; is that right?
17 A We were given a reading list, that's correct.
18 Q And it included special orders and general orders or it
19 made reference to them; is that correct?
20 A That's correct.
21 Q And I trust that special orders and general orders apply
22 to police department policy citywide; is that right?
23 A That is correct.
24 Q General orders and special orders don't distinguish
25 between the districts you described as busy and those that
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Kimber - direct
1 might not be as busy; is that right?
2 A No, they do not.
3 Q They apply uniformly across the board; is that right?
4 A That's correct.
5 Q Now, when you were told to study for this test, you were
6 never advised by anybody that you should study for the special
7 orders that only apply in busy districts, were you?
8 A No, I was not.
9 Q You were told to study the special orders that apply
10 citywide; is that correct?
11 A That is correct.
12 Q So you were put on notice that the test was going to test
13 you on the special orders and general orders that were
14 applicable citywide; is that correct?
15 A That is correct.
16 Q Now, let's take the example -- you mentioned about public
17 indecency and you said that in some of the busy districts where
18 you had practiced there was a different policy; is that
19 correct?
20 A That is correct.
21 Q And you explained the difference in that policy.
22 A Procedure.
23 Q Now, if you were transferred to another district, isn't it
24 true that you would be expected to know the policy as reflected
25 in the special order not in the practice of the busier
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Kimber - direct
1 district?
2 A My answer to that would be when I worked in the busy
3 district, and as an example I gave No. 80, I was told to do it
4 a certain way. That's --
5 Q I appreciate that.
6 A Okay. Wait. I'm trying to answer your question, counsel.
7 When I did get transferred from that district to a
8 nonbusy district, I went to 12 as a supervisor, I think then it
9 was only I realized from being transferred and going to a
10 nonbusy district and then being explained to me, that it wasn't
11 done this way.
12 Q But the expectation is that in the nonbusy district that
13 you play it according to how the special order is written; is
14 that right?
15 A I'm sorry. Repeat your question, counsel.
16 Q The expectation once you were transferred to the nonbusy
17 district was that you were going to adhere to the special order
18 or general order as written; is that right?
19 MR. FLAXMAN: Objection to the form of the question.
20 Whose expectation?
21 THE COURT: Overruled. Can you answer?
22 THE WITNESS: Yes.
23 BY THE WITNESS:
24 A The expectation was from the supervisors that I would
25 perform in the same manner, but from my perspective, from being
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Kimber - direct
1 trained in policy and procedure, as I mentioned earlier, the
2 superintendent said formal and informal, my procedure had
3 taught me or my training for my 10 years was that this is the
4 procedure we use, and it had been so ingrained that I thought
5 this was the proper procedure.
6 BY MR. FORTI:
7 Q Given the fact that you had slightly different training
8 because you were in a busy district, then you were unprepared
9 to know what the special order as written required; isn't that
10 right?
11 THE COURT: At what time?
12 MR. FORTI: At the time he was transferred to the
13 less busy district.
14 BY THE WITNESS:
15 A I'm sorry, counselor. Repeat your question.
16 BY MR. FORTI:
17 Q Sergeant Kimber, you testified you had been trained and in
18 fact I think you used the word ingrained to follow certain
19 practices in the busy district.
20 A Right.
21 Q I'm asking you once you were transferred to the nonbusy
22 district, that meant you were unprepared because you did not
23 know the language and the practices of the special orders and
24 the general orders as they apply in the less busy district;
25 isn't that right?
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Kimber - direct
1 A Until I reviewed those orders.
2 Q All right. Until you reviewed them.
3 Now, tell me Sergeant Kimber, you mentioned that in
4 the busy districts that there is a way of cutting corners; is
5 that right?
6 A Correct.
7 Q Does cutting corners violate the policy of the Chicago
8 Police Department if you vary from the special order or a
9 general order?
10 A Sometimes it does, yes.
11 Q Are you suggesting that in the busy districts they
12 routinely violate the policy of the Chicago Police Department
13 and -- in the way they abide by special orders and general
14 orders?
15 A I'm saying that in busy districts the policy and procedure
16 that are used are not the same policy and procedures that are
17 done in nonbusy districts. If you're asking for specified
18 examples, you would have to give me one and I can say or no to
19 that example.
20 Q Now, you had mentioned that you were a member of the
21 Guardians; is that right?
22 A Yes, I am.
23 Q For how long have you been a member of the Guardians?
24 A Ah, about 15, 16 years, I guess. 15, 16 years. Maybe a
25 little bit longer. Maybe 20, something like that.
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Kimber - direct
1 Q Are you familiar with the Blue Ribbon Panel that was
2 formed by the mayor several years ago to address the question
3 of how to best formulate tests for promotions?
4 A Yes, I am.
5 Q Did the Guardians submit any proposals or suggestions to
6 that Blue Ribbon Panel as to what the best or appropriate
7 testing procedure should be?
8 A Yes, we did.
9 Q What did you submit?
10 A We testified in front of -- in fact, I testified in front
11 of Blue Ribbon Panel.
12 Q And what was your testimony?
13 A My testimony was regarding the testing procedures that the
14 Chicago Police Department used.
15 Q Did you have any recommendations as to what the Blue
16 Ribbon Panel should adopt?
17 A Yes, I did.
18 Q What was that?
19 A Some of the recommendations -- all the recommendations or
20 --
21 Q Well, if you could summarize them briefly. Or let me ask
22 you this. Did the Blue Ribbon Panel accept any of your
23 recommendations?
24 A I never received a written communication back from the
25 city as to what the Blue Ribbon Panel accepted for my
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Kimber - redirect
1 recommendations.
2 Q Was your organization in favor of objective tests?
3 A Yes, we were.
4 Q You mentioned as well after Mr. Flaxman showed you a
5 certain exhibit that various -- you anticipated that certain
6 black lieutenants were expected to retire in the not too
7 distant future; is that correct?
8 A Correct.
9 Q That means there will be more vacancies rather than less
10 vacancies within the lieutenant ranks; is that correct?
11 A That's correct.
12 Q And that will increase the opportunity at some point for
13 additional sergeants to be promoted; is that right?
14 A That is correct.
15 MR. FORTI: No further questions.
16 REDIRECT EXAMINATION
17 BY MR. FLAXMAN:
18 Q And if additional sergeants are promoted from the existing
19 list, there will be white guys replacing these black
20 lieutenants who are retiring; is that right?
21 A According to my statistics, I believe it's 42 -- and this
22 is from my Guardian Association, there are 42 or 46 -- 46 black
23 lieutenants. Within this year six will retire, which will mean
24 there will be 36 black lieutenants. Six are scheduled to
25 retire or quit before the end the year is over.
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Cadogan - direct
1 Q So 46 you said or --
2 A I'm sorry. 42. We say it's 42 black lieutenants and six
3 retiring will leave us 36 lieutenants.
4 Q And if they're replaced from the current list, they'll be
5 replaced by --
6 A Our percentages will go down, correct.
7 MR. FLAXMAN: Thank you. Nothing further.
8 MR. FORTI: Nothing further.
9 THE COURT: Thank you.
10 THE WITNESS: Thank you.
11 (Witness excused.)
12 MR. FLAXMAN: Next witness is Mr. Cadogan.
13 THE COURT: Please raise your right hand.
14 (Witness sworn.)
15 JOHN CADOGAN, PLAINTIFF'S WITNESS, DULY SWORN
16 DIRECT EXAMINATION
17 BY MR. FLAXMAN:
18 Q State your name, first, please.
19 A John Cadogan, C-a-d-o-g-a-n.
20 Q What's your business or occupation?
21 A Presently serve as the chief of the patrol division in the
22 Chicago Police Department.
23 Q What does it mean to be the chief of the patrol division?
24 A Chief of the patrol division is responsible for ensuring
25 the delivery of basic police services, answering calls for
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Cadogan - direct
1 service, the preliminary investigation of crime, the handling
2 of traffic accidents in the 25 police districts that make up
3 the city of Chicago.
4 Q How long have you been the chief?
5 A Since July of 1992.
6 Q When you took over, were there any vacant sergeant
7 positions?
8 A I have no idea, sir.
9 Q Well, when you took over, were there any vacant lieutenant
10 positions?
11 A I don't know that either.
12 Q Did you ever become aware that there were vacant sergeant
13 positions in the patrol division?
14 A In 1992?
15 Q At any time since July of 1992, when you came into your
16 position, have you ever learned that there were vacant sergeant
17 positions?
18 A Yes, sir.
19 Q When's the first time that you learned there were vacant
20 sergeant positions?
21 A I don't have an independent recollection.
22 Q Well, it was sometime in 1992, wasn't it?
23 A That it would have been.
24 Q That's because the City didn't make any promotions to
25 sergeant in 1992; is that right?
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Cadogan - direct
1 A I don't know that.
2 Q And there were more vacant positions, weren't there, in
3 1993? Is that right?
4 A I can't answer that question without looking at
5 documentation.
6 Q What kind of documentation would you have to look at?
7 A Well, we prepare monthly reports that indicate how many
8 positions are staffed and how many aren't. I just don't have a
9 recollection back to '92 and '93.
10 Q Well, do you know whether or not there were any promotions
11 to sergeant in 1993?
12 A I don't. I don't know.
13 Q Do you know if any sergeants retired in 1992?
14 A Based on historical rate of retirement, I would say there
15 were retirements of sergeants in 1992, yes.
16 Q And there were probably retirements in 1993; is that
17 right?
18 A I would say that's correct.
19 Q And there were probably retirements in '94; is that right?
20 A That's correct also.
21 Q And was the police department in the City of Chicago
22 getting smaller in 1992, '93, '94?
23 Was the business being downsized?
24 A I don't know. I don't know the strength figures.
25 Q Okay. Do you know when the last promotions were made to
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Cadogan - direct
1 sergeant?
2 A I believe this --
3 Q 1995?
4 A '95, right.
5 Q And weren't those the first promotions to sergeant since
6 1991?
7 A I'm not sure of the date, sir.
8 Q Well, at the time those promotions were made in 1995
9 weren't there about -- well, were there any vacancies when
10 those promotions were made?
11 A I would anticipate that there were vacancies. In order to
12 have the promotions, you would need budget vacancies.
13 Q There were about 300 vacancies then, weren't there?
14 A That I don't know.
15 Q And you don't know if there had been 300 vacancies in
16 1992, 1993, 1994?
17 A That correct.
18 Q And if I asked you the same questions about lieutenants,
19 do you know when the last lieutenant promotions were made
20 before promotions -- let me go back.
21 Were there lieutenant promotions in 1995?
22 A I believe there was.
23 Q As a matter of fact, there were 54; is that right?
24 A That sounds about right.
25 Q Okay. And three of those were African-Americans; is that
156
Cadogan - direct
1 right?
2 A I don't know that.
3 Q And before those promotions in 1995, isn't it true that
4 there had not been a lieutenant promotion since 1991?
5 A Sir, I don't know that either.
6 Q What do you do as chief of patrol?
7 A Ensure the basic delivery of police services throughout
8 the 25 police districts in the city.
9 Q Do you supervise lieutenants? Are there lieutenants in
10 your command?
11 A There are lieutenants in my command.
12 Q Are there sergeants in your command?
13 A There are sergeants in my command.
14 Q Would it be important to the work that you do if there
15 were 200 less sergeants than you need to do your job?
16 A That would have an effect on the delivery of police
17 services, correct.
18 Q And that would be important to you in your work to know
19 that you could not -- that there would be this effect on
20 delivery of police services from not having enough manpower; is
21 that right?
22 A I would be concerned about that.
23 Q Are you concerned now that there aren't enough
24 lieutenants?
25 A I am concerned.
157
Cadogan - direct
1 Q Are you concerned now that there aren't enough sergeants?
2 A Yes, sir.
3 Q Is it important to you, your concern that there aren't
4 enough lieutenants?
5 A I said I'm concerned and you're saying is it important to
6 me that I'm concerned?
7 Q Yeah. Is that an important concern that there aren't
8 enough lieutenants?
9 A Yes, it's an important concern.
10 Q Now, are you telling us you don't remember -- well, let me
11 go back.
12 Would it have been an important concern in 1994 that
13 there weren't enough lieutenants?
14 A Certainly.
15 Q Would it have been an important concern in 1993 if there
16 weren't enough lieutenants?
17 A You know, when you say there weren't enough lieutenants, I
18 mean everything has degrees. If there weren't enough
19 lieutenants and I was only short two or three lieutenants, that
20 has a different effect than if I'm short 25 or 30 or 50
21 lieutenants.
22 So, you know, that's the only way I can answer that.
23 Tell me how many lieutenants I'm short and I'll give
24 you some indication of how serious the problem is.
25 Q And you don't know how many, if any, you were short in
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Cadogan - direct
1 '92, '93; is that right?
2 A Without looking at some kind of documentation, I couldn't
3 give you that off the top of my head.
4 Q And how long would it take you to look at that
5 documentation?
6 A Sir, I don't even know that it exists.
7 Q No way you could figure that out?
8 A I don't know.
9 Q The 18 -- you know that there is a plan to promote 18
10 sergeants; is that correct?
11 A That's correct -- 18 what?
12 Q Excuse me. 18 lieutenants.
13 A 18, yes.
14 Q Where are they going to be assigned?
15 A That's up to the superintendent to determine.
16 Traditionally new assignments have been made to the patrol
17 division.
18 Q Is that your division?
19 A Yes, it is.
20 Q How many lieutenants are you down right now?
21 A At the present time I am either at or slightly over my
22 lieutenant strength.
23 Q So you don't need 18 more lieutenants; is that right?
24 A I need many more than 18 lieutenants. The question calls
25 for further explanation.
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Cadogan - direct
1 Q Well, what does it mean to be at your strength?
2 A Well, there are certain number of budgeted lieutenant
3 positions; and if you have that number of positions, I would
4 say I was at strength.
5 Q Well, how many lieutenant positions are budgeted for
6 patrol?
7 A In district law there are a hundred and I believe -- a
8 hundred and about eighty, 179 or 180.
9 Q And how many do you have?
10 A I have 180.
11 Q Does a lieutenant have to be budgeted before you can hire
12 one?
13 A I believe that's a requirement of the city ordinance.
14 Q So you don't have any shortage of lieutenants; is that
15 right?
16 A Yes, I said I am short lieutenants. I said the question
17 called for further explanation.
18 Q Okay. Well, for you to get more lieutenants would you
19 need to get your budget increased?
20 A In order to answer your question, I would have to go into
21 some of the staffing history of the patrol division, and that
22 staffing history is that historically there were three captains
23 and seven lieutenants assigned to each one of the 25 police
24 districts, with the exception of the 1st and the 18th that had
25 an eighth lieutenant assigned.
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Cadogan - direct
1 So if you took the -- did the multiplication of 25
2 times the three and the seven which are ten, that was 250, and
3 the extra lieutenant and captain in the 1st and 18th district,
4 it was 252. And that was the number I need to run and be
5 completely fully manned in the district law enforcement.
6 Q And you're only budgeted for 180?
7 A No. I'm budgeted for 75 district watch commanders, of
8 which at the present time 42 are vacant.
9 Q And --
10 A And I have to assign one of the lieutenants to fill that
11 district watch commander position.
12 Q When was the last time you had 75 watch commanders, if
13 ever?
14 A Oh, it was probably about -- and I'm going to guess, maybe
15 four, five years ago.
16 Q So how many watch commanders have you been down in the
17 last --
18 A Each year you drop.
19 Q Well, has the City of Chicago -- has the police department
20 of the City of Chicago been able to do its job with 42 watch
21 commanders?
22 A By utilizing the lieutenants in the acting watch commander
23 position, yes.
24 MR. FLAXMAN: I have nothing further.
25 MR. FORTI: Your Honor, we intend to call Chief
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Cadogan - cross
1 Cadogan in our case in chief. Should I proceed now with his
2 direct?
3 THE COURT: I would encourage it.
4 CROSS EXAMINATION
5 BY MR. FORTI:
6 Q Chief Cadogan, let's try to clear up plain and simple some
7 of the confusion that was elicited during your direct
8 examination by Mr. Flaxman.
9 Could you explain the current vacancies that exist
10 within district law. And first tell me what is district law?
11 A District law enforcement makes up -- is composed of the 25
12 police districts that comprise the City of Chicago that deliver
13 basic police service to the citizenry.
14 Q So when other officers have testified they're in district
15 4 or district 15, those are the same 25 we're talking about?
16 A That's correct.
17 Q And district law is under your supervision; is that
18 correct?
19 A That is correct.
20 Q All right. Could you explain what vacancies there are
21 within district law that need to be filled.
22 A As I stated earlier, in order to staff the districts up to
23 budget strength, I have 75 district watch commander positions
24 and 177 lieutenant positions. That comes to 252. And that's
25 what I need to be able to staff.
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Cadogan - cross
1 At the present time I have 33 captains serving in the
2 position of watch commander and I have 42 lieutenants filling
3 in as the acting watch commander. So that 33 and that 42 total
4 75.
5 Additionally I have 140 other lieutenants that are
6 serving as patrol division field lieutenants or field
7 operations lieutenants.
8 If you add the 75 to the 140, I believe you come out
9 with 215. Since I'm supposed to have 252, that puts me 37
10 short.
11 Q So 37 is the shortage within the -- within district law;
12 is that correct?
13 A That's correct.
14 Q Is there another major subdivision to the area that you're
15 in charge of?
16 A Well, the patrol division is comprised of district law and
17 the special function group in addition to the labor unit, which
18 is a very small unit.
19 Q Could you describe for us what is the special functions
20 group.
21 A The special functions group consists of divisions such as
22 the public housing division, the public transportation
23 division, the traffic division, airport law enforcement, and
24 one other now and I'm not picking it up.
25 Q That is okay.
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Cadogan - cross
1 A I can't remember.
2 Q Are lieutenants assigned to the special functions group?
3 A Yes, lieutenants are assigned to the special functions
4 group.
5 Q Currently are there any vacancies within special
6 functions?
7 A At the present time I'm supposed to have 21 lieutenants
8 and I believe I have 15, which would put me six short in
9 special functions.
10 Q So is it correct that if you add the 27 and the 6, there
11 are -- you are 43 short currently within the patrol division?
12 A That's correct.
13 Q Do you anticipate any other vacancies in the near future,
14 in the lieutenant's position?
15 A Well, as the witness that was here before me spoke about,
16 some of the lieutenants that he knew that were going to retire
17 shortly, I'm also aware of those. I have a lieutenant in the
18 2nd district, a captain in the 4th district, two lieutenants in
19 the 6th district, a captain in the 11th district, and a
20 lieutenant in the 17th district that I'm aware of that have
21 indicated their desire to retire either through a power form or
22 currently have a schedule to use the time that they have coming
23 to them.
24 Q So to the best of your knowledge on top of the 43
25 vacancies, there's approximately how many additional vacancies
164
Cadogan - cross
1 that you anticipate in the near future?
2 A There's approximately six more in the near future.
3 Q Now, are you aware of any vacancies for the position of
4 lieutenant outside of the patrol division?
5 A I'm aware of some of the units that have vacancies, yes.
6 Q Could you identify those, and approximately how many
7 vacancies, if you know?
8 A Well, I believe there is a vacancy in the internal affairs
9 division. There is a vacancy in the intelligence division.
10 There is a vacancy in the gang crimes section. There's, I
11 believe, four vacancies in the detective division. There's a
12 vacancy in the youth division.
13 That's about what I can remember right now.
14 Q All right. With respect solely to the patrol division,
15 because that's the area that you're in charge of, what's been
16 the effect of these vacancies on the operations of the patrol
17 division?
18 A When you have a shortage of supervisors, especially with
19 the conditions that we have had in the last two years and the
20 current year, the hiring that has gone on in '94 and '95 was I
21 believe 1800 and 40 or 50 new police officers were hired. In
22 addition the '96 budget anticipates hiring 550 more, so that
23 we'll have almost 2400 new police officers on the street.
24 Those officers need supervision. They need
25 direction. So that when you're short supervisors, you end up
165
Cadogan - cross
1 with officers not -- excuse me, I'm running dry, not being able
2 to fulfill their responsibility properly.
3 Q You -- I'm sorry. Go ahead.
4 A I was just going to say it ends up with mistakes being
5 made or the proper service not being rendered.
6 Q Now, you mentioned that there were approximately 2,000 new
7 officers since 1994?
8 A 1800 I believe -- about 1800 and 50 in '94 and '5 with 550
9 to be hired this year.
10 Q How do those numbers compare to the total numbers in the
11 police department?
12 A I believe in the police officer position in district law
13 enforcement I have about 7,900 police officers. So that would
14 be about 30 percent of the total police officers.
15 Q In addition to training these new recruits, is there any
16 other way that the vacant lieutenant positions has adversely
17 affected the operations of the patrol division?
18 A Well, what happens is that in every district you're
19 supposed to have a watch commander who is inside the district
20 running the district operation, making sure that things like
21 arrestee processing, bail bonding and things like that are
22 being properly handled, that the people that are doing that are
23 doing it properly, approving charges and things like that.
24 You also have a lieutenant who works in the field,
25 and he supervises all of the field activities, all of the beat
166
Cadogan - cross
1 cars that are working out there, the sergeants' cars that are
2 working out there, and he's to ensure that they're responding
3 appropriately to citizens' calls for service, that the
4 sergeants are going in on supervision.
5 The lieutenant has to take in felony calls. He has
6 to respond to all plans. He has to go to fires, explosions,
7 major crime incidents. He has to do preliminary investigation
8 if there is a police officer shooting.
9 What has happened with my having to work those
10 lieutenants as watch commanders is that in the 13th police
11 period of 1995, which comprised about the last three weeks of
12 December and the first week of January of '96, my staffing
13 levels were such that on the midnight shift 68 percent of the
14 time I did not have a lieutenant working in the field. On the
15 second watch, which is the day shift, 71 percent of the time I
16 did not have a lieutenant working, and --
17 Q And was that throughout the entire city?
18 A That's on the basis of the whole city, the 25 police
19 districts.
20 And on the third watch, excuse me, which is the 4 to
21 12 shift, it was 74.0, I believe, percent of the times I had a
22 lieutenant's car down.
23 Q So therefore there was no supervisory person in those
24 divisions at that time?
25 A That's correct.
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Cadogan - cross
1 Q Let me go back just for a second for a little bit of your
2 background.
3 When did you first become employed by the Chicago
4 Police Department?
5 A January 9th, 1961.
6 Q And what was your entry-level position?
7 A Probationary police officer.
8 Q Chief Cadogan, could you describe the rank positions you
9 have held since that time up to the present, very briefly, just
10 those titles.
11 A I've held the position of sergeant, lieutenant, captain,
12 director of research and development, assistant deputy
13 superintendent for the bureau of operation -- bureau of
14 operational services, deputy chief -- administrative deputy
15 chief in the patrol division, chief of the organized crime
16 division, and now chief of the patrol division.
17 Q Now, based on that experience, Chief Cadogan, I trust you
18 can tell me or you're familiar with the obligations and duties
19 of sergeants as well as the duties of lieutenants; is that
20 right?
21 A Yes, I have.
22 Q You have heard perhaps testimony earlier today where
23 various sergeants have indicated that they have observed
24 lieutenants in action and therefore they have a sense of what a
25 lieutenant does. Did you hear that testimony?
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Cadogan - cross
1 A I did.
2 Q Are there differences between the job of sergeant and the
3 job of lieutenant?
4 A Well, the sergeant for the most part is dealing with one
5 particular segment of the district, what we call a sector. He
6 supervises beat cars in that particular sector where the -- and
7 there are three sectors in each district; whereas, the
8 lieutenant will have primary responsibility for not only
9 supervising the three sergeants, the entire district. The
10 lieutenant acts as a watch commander in the patrol division
11 districts, which a sergeant does not do. And that -- there is
12 a big difference between the sergeant and the lieutenant's job
13 at that particular time.
14 The lieutenant is called in then to work inside and
15 relieve the watch commander, and he is then responsible for
16 approving arrests. He's responsible for the placing of charges
17 on misdemeanor and ordinance cases. He's responsible to ensure
18 that the state's attorney is contacted and that felony review
19 approval is received when we're going to place charges in
20 felony cases. He's responsible at that time for all of the
21 activities that are occurring in the police district station.
22 So the level of responsibility changes significantly
23 when you're a lieutenant versus the sergeant.
24 Q And is there also conduct that the lieutenant would engage
25 in that a sergeant would not see?
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Cadogan - cross
1 A Well, when the lieutenant would be the acting watch
2 commander, the only time a sergeant would be able to observe
3 what's he doing at that point in time is if that sergeant was a
4 desk sergeant, otherwise the other sergeants are out in the
5 field.
6 Q Okay. Now, if the vacancies that you've referred to
7 within the patrol division are not filled, what will the
8 consequences be, if any, during the upcoming months?
9 A Well, we have a -- not only am I concerned about what the
10 consequences are right now by the vacancies, as you can see, by
11 the number of times I'm not able to field a lieutenant's car,
12 but we're going into a season right now when there are many,
13 many special events that occur in the city and they all need to
14 be policed.
15 What happens is you draw from patrol division
16 districts and you send police officers with their supervisors
17 and their lieutenants to police these events, and some of these
18 events are significant size events. I mean we have the normal
19 events that we have every year. As an example you would have
20 Puerto Rican Week, Venetian Night, Viva Chicago, Taste of State
21 Street. We'll have the Cinco de Mayo, the El Gareto Parade.
22 I mean there are just -- there are probably 150
23 special events that need to be policed that start in the spring
24 and end in early fall.
25 Q Well, what role do lieutenants have in all of this?
170
Cadogan - cross
1 A Well, the lieutenants -- some of these events call for as
2 many as 15, 20, 25 tactical teams to be assigned to these
3 events; and when that many tactical teams come, they each come
4 with a tactical sergeant.
5 Well, then you need a lieutenant to manage the
6 tactical sergeants. So that if you brought 25 tactical teams
7 down to one of these events, you'd probably bring 3 or 4
8 lieutenants to come with them to make sure that the sergeants
9 have the proper supervision and they're doing what they're
10 supposed to be doing.
11 Q In order to prepare for these summer events that you
12 referred to, how soon would you like to see these promotions
13 occur?
14 A As soon as possible.
15 I left out one major event, too. I guess I didn't
16 say it. I am concerned about the Democratic National
17 Convention.
18 Q Why will the convention -- how will the convention, if at
19 all, impact the operations of the patrol division and its need
20 for lieutenants?
21 A If you remember in the last convention we had here, we
22 ended up in almost total department mobilization to address the
23 problems that were occurring. So that the planning that is
24 being done now has to anticipate the worst case. If something
25 happens, if the war in Bosnia turns negative and people start
171
Cadogan - cross
1 to come out and demonstrate, we may face the same kind of
2 conditions this year as we faced in 1968. We have to be
3 prepared for that.
4 There will be thousands of policemen out on the
5 street and I'll need supervisors to make sure that the police
6 officers are not over reacting and that they're doing what
7 they're supposed to be doing; and that if citizens are
8 expressing their right to petition their government, they're
9 allowed to do that.
10 Q Chief, are -- is there extra sensitivity within the
11 department given the history of what happened in 1968?
12 A Absolutely.
13 Q Now, it's my understanding -- Chief, are you aware that at
14 issue here is sergeants seeking to become lieutenants took a
15 test prepared by Barrett & Associates?
16 A I'm aware of that.
17 Q What role, if any, did you play in the development of the
18 test?
19 A I participated in the review of the various parts of the
20 test that the vendor put together in terms of subject matter,
21 in terms of the way the questions were worded, in terms of did
22 I believe that they reflected what a sergeant or a lieutenant
23 would have to know.
24 Q Did you exam all three components of the test?
25 A I did.
172
Cadogan - cross
1 Q Did anyone else examine these three components with you?
2 A Yes, sir.
3 Q Who was that?
4 A On the sergeant's test, Lieutenant -- currently Lieutenant
5 John Klein. On the lieutenant's test I believe we did the
6 first review, and then I think we had assistance in terms of
7 Commander DeLopez and Deputy Chief Shaw from the detective
8 division for the lieutenant's exam.
9 Q What steps did you take to determine whether the items on
10 the job knowledge portion of the test were related to what a
11 lieutenant does within the Chicago Police Department?
12 A Well, a lieutenant has to know -- because he's going to be
13 in a position of approving charges, he has to know the law. He
14 has to know the ordinances. He has to know the state statutes.
15 I saw questions relative to that material on the
16 test.
17 As a lieutenant or a sergeant you're going to get
18 grievances because there's a labor contract in this city. So
19 there were questions relative to the labor issues and the FOP
20 contract that we deal with on a daily basis. So that people
21 have to know how to process grievances and whether something
22 can be grieved.
23 There were several questions relative to that on the
24 exam.
25 And then there were a great deal of questions that
173
Cadogan - cross
1 dealt with policy and procedure that I felt a lieutenant should
2 know.
3 So based on the material that I reviewed I thought
4 the exam was very well put together.
5 Q Did you also have a similar opportunity to review the
6 forms included and items included for the in-basket portion of
7 the test?
8 A I did.
9 Q What steps did you take to determine if the materials in
10 the in-basket test were related or similar to the functions
11 performed by a lieutenant in the Chicago Police Department?
12 A Well, we got to review the material that was presented,
13 and if my memory serves me, I believe there was a -- an example
14 of an arrest report and there was narratives filled in and
15 there was material left out, and since a lieutenant would be
16 approving arrest reports, I thought that was something that
17 would be fair to test on.
18 Q During the course of your review was there any occasion
19 for you either to add or to delete items that were -- that were
20 proposed by Dr. Barrett?
21 A Yes, there was. The individuals that we worked with were
22 very open and attentive. When we made suggestions, they took
23 them very quickly. They made the changes. I was very
24 impressed with the professionalism that they displayed.
25 Q Based on your review of the test, was there any portion of
174
Cadogan - redirect
1 the test that did not test the basic knowledge skills and
2 abilities needed to be a Chicago lieutenant?
3 A Not to my knowledge.
4 MR. FORTI: No further questions. Thank you.
5 REDIRECT EXAMINATION
6 BY MR. FLAXMAN:
7 Q You don't have a degree in industrial psychology, do you?
8 A I do not.
9 Q But you do know what police officers do; is that right?
10 A I believe so.
11 Q And you know what lieutenants do; is that right?
12 A I think I do.
13 Q Do lieutenants have to be able to write clearly and
14 concisely?
15 A Yes, they do. I would say that's a trait that they should
16 possess.
17 Q That's an essential trait, isn't it?
18 A I think as I indicated in the dep you took from me I
19 believe that's an essential trait of police officers, sergeants
20 and lieutenants, all the way up. You should be able to write
21 correctly.
22 Q And oral communication, is it important for police
23 officers, sergeants and lieutenants to be able to understand
24 what civilians say to them?
25 A Yes, it is.
175
Cadogan - redirect
1 Q And that's -- is that a very important part of the job of
2 lieutenant?
3 A It's one part of many parts of the job of lieutenant that
4 I would consider to be important.
5 Q Now, in the work that you did with Dr. Barrett, did you
6 ever -- were you ever asked to look over a job description and
7 say these are all the things that a lieutenant does?
8 A I don't remember seeing a job description.
9 Q Now, you talked about these special events. You said they
10 start in the spring and then your counsel said -- the City's
11 counsel said they start in the summer. When --
12 A I would consider the first event I have to be concerned
13 with that kind of kicks off is the St. Patrick's Day Parade.
14 Q When is that?
15 A It will be in March. One will be on the 17th and one on
16 the south side maybe before that.
17 Q And after the St. Patrick's Day Parade, are there -- when
18 are the next special events?
19 A I believe they start heavily in May, toward the end of May
20 and into June. I think Cinco de Mayo is another one that
21 requires significant coverage, and that's in early May.
22 Q Now, let's say we all agree that there is a need for more
23 lieutenants in the Chicago Police Department. Would the City
24 be irreparably harmed if you were asked to hold off another two
25 weeks in making promotions?
176
Cadogan - by the Court
1 Would you be able to manage for another two weeks, if
2 you were asked to do that?
3 A I think I would.
4 MR. FLAXMAN: Thank you. I have nothing further.
5 MR. FORTI: Nothing further, Your Honor.
6 THE COURT: I'm not quite clear about how long you've
7 had this severe shortage of lieutenants. Can you tell me?
8 THE WITNESS: We've been -- we've been struggling
9 with this because our effort to put together this program for
10 this district watch commander has been going on for a
11 significant period of time.
12 We're trying to get a program together to where the
13 district commander, who is running this district, can appoint
14 lieutenants up to a position of watch commander, which they
15 would get an increase in pay to do, and that district -- that
16 district commander would appoint those people. And as long as
17 they worked out, they would remain in that position and they
18 would get that additional pay. But when they stop being able
19 to do the job, he would be able to remove them and appoint
20 whoever else he would think would do a good job.
21 We haven't been able to get all the particulars for
22 that program worked out. But it's something that we're moving
23 very cautiously but with some dispatch to try and get resolved.
24 THE COURT: And how long has that been going on?
25 THE WITNESS: I'd say that's been going on -- oh, we
177
Cadogan - by the Court
1 ran into -- when we made the proposal more than a year ago, I
2 would say, we ran into a problem with what we considered
3 Shakman exemptions, and we were not able to get any ruling on
4 whether it was or it wasn't, but just recently I believe we
5 have a ruling that indicates that while it may not be an
6 exemption, it may be an exception.
7 And that's a layperson talking about Shakman. I'm
8 not an authority on Shakman.
9 THE COURT: What has to be excepted from the Shakman
10 decree? Watch commander?
11 THE WITNESS: In order for us to just appoint a
12 person to that position without any testing and to be able to
13 remove him much as the superintendent does with his exempt
14 members that he chooses, it was our initial impression that we
15 had to be exempted from Shakman to do that. Otherwise we had
16 to develop some kind of a testing process.
17 THE COURT: I understand. Okay. Thank you.
18 Anything else?
19 MR. FLAXMAN: No.
20 THE COURT: All right. Thank you. You are excused.
21 (Witness excused.)
22 THE COURT: We're going to take a break. I have a
23 very short arraignment. You don't even have to leave.
24 (Brief recess.)
25 THE COURT: Raise your right hand.
178
Joyce - direct
1 (Witness sworn.)
2 THE COURT: Have a seat.
3 ROBERT JOYCE, PLAINTIFF'S WITNESS, DULY SWORN
4 DIRECT EXAMINATION
5 BY MR. FLAXMAN:
6 Q State your name, please.
7 A Robert T. Joyce, J-o-y-c-e.
8 Q Are you the or a deputy commissioner of the City of
9 Chicago, Department of Personnel?
10 A I am a deputy commissioner, yes.
11 Q As deputy commissioner are you responsible for staffing
12 approximately 39,000 positions in city government?
13 A I oversee the unit that has that essential function and
14 responsibility, yes.
15 Q Are part of your responsibilities to oversee the
16 development, administration and scoring of career service
17 promotional testing for uniform positions in the Chicago Police
18 Department?
19 A Yes.
20 Q Uniform positions, does that include lieutenant?
21 A Yes.
22 Q And have you held this particular position of being a
23 deputy commissioner since 1981?
24 A Yes.
25 Q Between 1977 and 1981 did you hold a position of manager
179
Joyce - direct
1 of employment services?
2 A I held that title. I believe that was the time period.
3 Q And did you have similar responsibilities as manager of
4 employment services as you do now as deputy commissioner?
5 A Yes.
6 Q And have you been employed in the personnel department
7 since about 1970?
8 A Yes.
9 Q Have you been involved in any way with police promotional
10 tests?
11 A Yes.
12 Q As a matter of fact, were you involved with the 1977
13 lieutenant's promotional test?
14 A Yes.
15 Q Were you involved in the design, creation, scoring and
16 administration and the legal defense of that test?
17 A I was certainly involved in the development and scoring of
18 it. I'm not sure what you mean by the legal defense of it.
19 Q Well, were you a fact witness who testified at the trial
20 in that case, in a case involving that test?
21 A Yes, I was.
22 Q For several days, as I recall?
23 A Yes.
24 Q Were you also involved in the preparation and the design
25 and the scoring of the next sergeant's promotional test --
180
Joyce - direct
1 excuse me, the next lieutenant's promotional test in 1987?
2 A Yes. I was part of that committee.
3 Q Now -- and were promotions made from the 1987 test?
4 A Yes.
5 Q As a matter of fact, were promotions made in 1988, 1989,
6 1990 and 1991?
7 A I cannot recall specifically when promotions were made
8 from the list.
9 Q Well, did there come a time that the City stopped using
10 the 1987 lieutenant's promotional test?
11 A Yes.
12 Q And was that after the 1991 Civil Rights Act became
13 effective?
14 A Yes.
15 Q Was that because the City was -- well, let me go back.
16 Was the 1987 lieutenant's test scored using something
17 called race norming?
18 A Yes.
19 Q Could you tell us what race norming was or is.
20 A If after administering a test and analyzing component raw
21 scores there is a statistically significant difference in
22 performance between race, ethnic groups or genders that cannot
23 be defended or explained by job analysis or other forms of
24 validation, my organization at the time would correct for that
25 using the terminology race norming which in effect converted
181
Joyce - direct
1 the scores from these different scales onto a unique and
2 overlapping scale. So that the adverse impact of particular
3 test components would be eliminated or at least minimize.
4 Q And that was race norming; is that right?
5 A Yes.
6 Q And is race norming a technique that was specifically
7 outlawed by an act of Congress in the 1991 Civil Rights Act?
8 MR. ROCKS: Objection, calls for a complex legal
9 conclusion.
10 MR. FLAXMAN: Well, let me rephrase the question.
11 BY MR. FLAXMAN:
12 Q Is race norming a phrase -- well, no.
13 Is race norming something that is addressed in the
14 1991 Civil Rights Act?
15 A The words "race norming" appear in the 1991 Civil Rights
16 Act.
17 Q Or words to that effect? I think -- is that correct?
18 A Yes.
19 Q And it was after the 1991 Civil Rights Act came into
20 effect, was it not, that the City of Chicago stopped making
21 promotions from the 1987 lieutenant's list; is that right?
22 A Yes.
23 Q As a matter of fact, do you remember whether or not there
24 was a lawsuit to try to force the City to use that list to make
25 promotions?
182
Joyce - direct
1 A I presently have no such recall.
2 Q Now, when is the next test that the City had in place
3 after the 1987 lieutenant's promotional test? Is that the test
4 we have now?
5 A It's the test in question, yes.
6 Q And were promotions to lieutenant first made in 1995 from
7 the Dr. Barrett test? Is that right?
8 A I don't recall when the first promotions were.
9 Q Well, between the effective date of the Civil Rights Act
10 of 1991 and the time, whenever it was that the first promotions
11 were made from Dr. Barrett's test, did the City have any way to
12 make lieutenant promotions?
13 A In the absence of an eligible list, I am not aware of any.
14 Q So is it correct then that in 1992 there were no
15 lieutenant promotions?
16 A It is my understanding.
17 Q 1993 there were no lieutenant promotions?
18 A I believe that's correct.
19 Q And 1994 there were no lieutenant promotions?
20 A I don't know when the new eligible list was adopted, so I
21 can't speak to '94.
22 Q And the same thing true for sergeants?
23 A In what respect?
24 Q That that -- that there had been a race norm list that had
25 been put up in 1987.
183
Joyce - cross
1 A Approximately 1987 and it was race normed.
2 Q And the City stopped using that race norm list in 1991?
3 A I don't know if it was '91 or the beginning of '92.
4 Q After the City stopped using that race norm list, it
5 didn't make any sergeant promotions until the new Dr. Barrett
6 list; is that right?
7 A That's my understanding.
8 MR. FLAXMAN: Thank you. Nothing further.
9 CROSS EXAMINATION
10 BY MR. ROCKS:
11 Q Mr. Joyce, the examination for lieutenant prior to the
12 Barrett examination that Mr. Flaxman was referring to, what
13 were the components of that examination?
14 A There were three components: a written multiple choice,
15 which was to be used only as a cut score or an initial hurdle.
16 Those persons who passed that part of the examination, the
17 written multiple choice, were allowed on to take or to have
18 evaluated two additional parts of the test, a form that was
19 called a written short answer and an oral board examination.
20 Q Would you explain what the written short answer component
21 involved.
22 A The individuals were provided with open-ended questions
23 that typically require them to give a phrase or a word or a --
24 possibly a sentence or two answer in direct response to a
25 question dealing with police procedures. They would have had
184
Joyce - cross
1 to recall the answer from their own -- their own memory. There
2 were approximately 10 or 11 questions on the test.
3 Q Did the work -- the written short answer component of that
4 exam measure writing clarity or competence?
5 A One of 11 or so ratings given to it addressed was was the
6 writing legible and was it in a form that was understandable to
7 a reasonable reader.
8 Q And what -- when you say understand, you mean syntax or
9 its appearance on the page?
10 A Was the person able to get their idea and concept across
11 as opposed to grammar or syntax.
12 Q What was the result of the written short answer component
13 in that exam?
14 A It was rather disappointing as a testing device because
15 the test scores were skewed to the high end, as we might say in
16 the testing business. It was a very easy test. Most people
17 achieved a perfect score or very narrowly a perfect score and
18 consequently it was unable to differentiate superior performers
19 from average performers.
20 Q Was Mr. Flaxman involved in the preparation or discussions
21 leading to the preparation of the lieutenant examination that
22 we're discussing?
23 A Yes, he was.
24 Q And in what way was he involved?
25 A Well, he made reference to a prior lawsuit. He was the
185
Joyce - cross
1 plaintiff's attorney in the prior lawsuit. And in the judgment
2 it was determined that plaintiff's attorneys could play a role
3 in participating and developing the next examination, and it
4 was in that role as an adviser and a participant in the test
5 decision strategies.
6 Q Did he play any role or did he participate in any
7 discussions regarding the written short answer component?
8 A Yes, he did.
9 Q Could you explain briefly what his involvement was in
10 that.
11 MR. FLAXMAN: I object. It's not relevant to this,
12 and it also --
13 THE COURT: You brought up this '87 test. I'm not
14 sure it's relevant very frankly. But let's not go too much
15 farther with this. I'm sure we have more important things to
16 do today.
17 BY THE WITNESS:
18 A He reviewed proposed test questions that were going to
19 appear on it. He had veto power over what was going to appear
20 on it. He participated in developing the scoring key that
21 would be used as -- to determine what is the correct answer and
22 what would -- how the scoring process would work in terms of
23 pointing. Also participated in a decision to throw out a
24 couple of the questions because of lack of clarity.
25 BY MR. ROCKS:
186
Joyce - cross
1 Q With respect to the merit selection process that we've
2 been discussing here today in the current examination, were you
3 involved in that process?
4 A Yes, I was.
5 Q What was your involvement in that?
6 A Well, the superintendent of police wrote to my immediate
7 boss, the commissioner of personnel, asking that some
8 consideration be given to a merit component and whether a merit
9 component could be justified. That process, that evaluation
10 was assigned to me in great part.
11 Q Did you form an opinion as to the proposal by the
12 superintendent of police?
13 A Yes, I did.
14 Q And what was that opinion?
15 A That given his proposal in the framework in which it was
16 proposed, that it would be a valid and useful tool to add to
17 the selection process or to the determination of who was
18 promoted to lieutenant.
19 Q Was there a particular percentage of promotions
20 recommended by the superintendent?
21 A Yes. He recommended a 20 percent of each promotional
22 group -- a goal of 20 percent of a promotional group be
23 allocated to meritorious appointment.
24 Q Did you form an opinion as to the validity or propriety of
25 that percentage?
187
Joyce - cross
1 A Yes, I did.
2 Q Have you formed an opinion at any point as to whether that
3 percentage should have been higher?
4 A I would be concerned at this point about going into a
5 higher percentage without additional information and a track
6 record.
7 Q What is it that is of concern to you?
8 A Well, we have never done meritorious at a point greater
9 than that. Part of what I relied upon to make my judgment and
10 form my opinion was the experience that the police department
11 has had in the meritorious appointments to detective, which for
12 quite some time had been 10 percent and worked very effectively
13 in my opinion.
14 More recently it was changed and raised to 20
15 percent, and in my opinion that is working effectively and
16 fairly. I would like to have a little bit more time to see
17 that in action before going much further.
18 Also, the concept of the merit promotions as done by
19 the police department through the Academic Advisory Panel or
20 what its actual title is, it is my opinion that identifying
21 persons based on outstanding and demonstrably superior
22 performance can be done, but I do not have a strong basis in
23 fact as to how far you can take that before it becomes somewhat
24 unreliable.
25 To me, as I see it, and the way other people have
188
Joyce - redirect
1 said it in other settings, I think it is fairly easy to
2 identify the very top of your performance group and very bottom
3 of your performance group through basic observation and job
4 performance. But as you try and make those judgmental
5 decisions in greater and greater increments, it becomes less
6 reliable. And to the extent it becomes less reliable, I think
7 it would detract from the overall promotional process, again
8 tying it back into the -- also utilizing the written components
9 of the examination.
10 MR. ROCKS: Thank you, Mr. Joyce.
11 REDIRECT EXAMINATION
12 BY MR. FLAXMAN:
13 Q In that 1987 test, the written multiple choice -- was
14 there -- there was a written multiple choice job knowledge
15 test; is that right?
16 A Yes.
17 Q And you said that was graded on a pass/fail basis; is that
18 right?
19 A A pass/fail or a hurdle approach, yes.
20 Q It wasn't used -- was the score on that test used to
21 develop your final -- the applicant's final score?
22 A No.
23 Q And was a decision made to use the written multiple choice
24 test as a hurdle rather than as a ranking device because of the
25 concern of all the people who were creating that test that
189
Joyce - redirect
1 multiple choice examinations are likely to have an adverse
2 impact on minority groups?
3 A No. As a matter of fact, the reason that -- I recall I
4 wanted it to play a part in the final score, but you said that
5 if we -- if we, the City, went along that course of action, you
6 would go back to court to try and stop us. At that point I
7 demurred to your position.
8 Q Is that what you said in an affidavit that you filed in
9 federal court in 19 -- in a case known as Bigby v. The City of
10 Chicago?
11 A I don't recall what that affidavit says.
12 Q Let me show you what we will mark as Plaintiff's Exhibit
13 46, and ask you to look at page 9. Is that your signature?
14 A Yes, that is my signature.
15 Q And is that a signature that you have affixed to an
16 affidavit that was going to be filed in a case pending in the
17 United States District Court for the Northern District of
18 Illinois, known as Bigby v. City of Chicago?
19 A Bigby Herwin Intervenors v. City of Chicago. Yes, my
20 that's my understanding.
21 Q And on page 2 did you write that this decision to use the
22 written multiple choice test as a screening device was
23 administered on the strong recommendation of the Bigby counsel
24 because of the fact that multiple choice examinations are
25 likely to have adverse impact?
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Joyce - redirect
1 MR. ROCKS: Objection, it's not impeaching. It's
2 consistent with what he testified to.
3 THE COURT: Do you have a copy I can see?
4 (Document tendered.)
5 THE COURT: What paragraph are you referring to?
6 MR. FLAXMAN: Page 2, top of the page -- paragraph 3.
7 It's the third sentence.
8 THE COURT: He doesn't have to answer the question.
9 He's already said he signed the affidavit. I'll sustain the
10 objection.
11 BY MR. FLAXMAN:
12 Q Is it a fact today, as it was back when you signed the
13 affidavit, that multiple choice examinations are likely to have
14 an adverse impact?
15 A Yes. I think the -- I think where you believe that I'm
16 being inconsistent is a misinterpretation.
17 MR. FLAXMAN: I move to strike that as nonresponsive.
18 THE COURT: So moved -- it's so ordered.
19 MR. FLAXMAN: Thank you.
20 BY MR. FLAXMAN:
21 Q Now, in your work for the City with Dr. Barrett and his
22 test, were you involved at all with Dr. Barrett in the work
23 that he did?
24 A No.
25 Q Were you involved in the decision of how the three parts
191
Joyce - redirect
1 of the test would be weighted?
2 A No.
3 Q What was the involvement of the City of Chicago in the
4 work that Dr. Barrett did? Was he given carte blanche to go
5 out and develop a test?
6 A The City of Chicago worked with Dr. Barrett to conduct a
7 job analysis, worked with him to provide subject matter
8 expertise and test development, worked with him in the
9 recommendations as to the weighting, worked with him as to
10 scoring recommendations and utilization of test score results.
11 Q How did you work with Dr. Barrett on the recommendations
12 for the weighting?
13 A Well, your question was the City of Chicago.
14 Q How did the City of Chicago work with Dr. Barrett for the
15 recommendations of the weighting?
16 A I don't know.
17 Q Do you know who would know?
18 A Ultimately it became a report, recommendation to the
19 Department of Personnel, who adopted the recommendation.
20 Q And that was the recommendation to weight each part
21 equally; is that right?
22 A Yes.
23 Q Were you involved in the decision to adopt that
24 recommendation?
25 A In that I took action to carry it out, I was involved.
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Joyce - redirect
1 Q Well, did somebody in the department of personnel actually
2 make a decision to adopt that recommendation?
3 A Yes.
4 Q Who actually made that decision?
5 A Probably jointly between myself and Commissioner Carr.
6 Q When you made that decision jointly with Commissioner
7 Carr, did you know that Dr. Barrett had done a computer
8 simulation which showed that if you weighted the test
9 differently, .2, .6 and .2, you would have more minorities
10 being promoted?
11 MR. ROCKS: Objection, assumes a fact not in evidence
12 that the simulation describes an actual state of existence.
13 That is not the testimony of Dr. Barrett.
14 THE COURT: All right. It's a simulation. I think
15 the word simulation advises it was hypothetical.
16 MR. FLAXMAN: It's getting late. I didn't hear you.
17 I'm sorry.
18 THE COURT: I said I think the word simulation
19 defines the question sufficiently.
20 I'll let you answer it. Can you answer it?
21 BY THE WITNESS:
22 A No, I am not aware of that.
23 BY MR. FLAXMAN:
24 Q Now, the decision that the test would be weighted
25 one-third, one-third, one-third, was that made on or about
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Joyce - redirect
1 April 29th, 1994, when the notice went out?
2 A Somewhat before that obviously.
3 Q Like a week before that or thereabouts?
4 A I can't pinpoint how much longer before that.
5 Q Did you ever become aware up until today that Dr. Barrett
6 had done some computer analysis to evaluate alternate weighting
7 of the three components of the lieutenant's test?
8 A No.
9 Q Did you ever read his report?
10 A The lieutenant's report?
11 Q Yes.
12 A No.
13 MR. FLAXMAN: I have nothing further.
14 MR. ROCKS: Nothing, Your Honor.
15 THE COURT: Okay. Thank you.
16 (Witness excused.)
17 (Brief recess taken.)
18 THE COURT: All right.
19 MR. FLAXMAN: Subject to formally moving into
20 admission all these documents that we're stipulating to and the
21 statistics that we had in the findings of fact that will be
22 stipulated to, I believe --
23 MR. ROCKS: As soon as we take a look at them.
24 MR. FLAXMAN: We have -- we've completed our case in
25 chief. We'll rest.
194
Klein - direct
1 THE COURT: Okay.
2 MR. ROCKS: Your Honor, we call John Klein.
3 THE COURT: Please raise your right hand.
4 (Witness sworn.)
5 THE COURT: Be seated.
6 JOHN KLEIN, DEFENDANT'S WITNESS, DULY SWORN
7 DIRECT EXAMINATION
8 BY MR. ROCKS:
9 Q Mr. Klein, would you please state your full name and your
10 current position in the Chicago Police Department.
11 A My name is John Klein, K-l-e-i-n. I am assigned as a
12 lieutenant of police with the Chicago Police Department,
13 presently assigned as the coordinator of education and training
14 at our training facility.
15 Q What are generally briefly your duties in the Police
16 Academy?
17 A At the Police Academy we have the division divided into
18 various sections with respect to the various training
19 initiatives that we engage in. It's my responsibility to -- in
20 conjunction with the assistant deputy superintendent to set
21 overall direction and coordinate all the activities that occur
22 there.
23 Q And for the record you're also an attorney?
24 A That's correct.
25 Q When are the -- when does the department plan to have
195
Klein - direct
1 these 18 proposed sergeant's promotions -- when will those
2 people go to the academy? What is the schedule?
3 A The lieutenant's promotions or the sergeant's promotions?
4 Q Lieutenants.
5 A Lieutenants, it's my understanding we intended to promote
6 them on the 16th of February.
7 Q To clarify, is that the day they go to the academy or the
8 day they're going to be promoted?
9 A That's unclear. We have done things many different ways
10 in the past. Generally they would be reported to the academy
11 on that day. There are some preliminary activities,
12 administrative activities that have to occur, such as a drug
13 screen. They would be promoted at sometime after the 16th.
14 Q Were you involved at all in the development of the
15 examination at issue today?
16 A I was involved as a subject matter expert with Chief John
17 Cadogan and Commander Joseph DeLopez and Deputy Chief Shaw in
18 the review of the written portions of the examination.
19 Q And did you go to Akron to Dr. Barrett's office to look at
20 those written portions?
21 A Yes, I did.
22 Q And did you form an opinion as to whether those -- the
23 materials you observed related to the job of police lieutenant
24 in the Chicago Police Department?
25 A After considerable review and discussion with
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Klein - direct
1 Dr. Barrett's staff, it is my opinion the exam was very well
2 crafted, much better than I had seen in the past, and I believe
3 that all the questions were directly related to the position of
4 police lieutenant.
5 Q Did you in your review reject any items that Dr. Barrett
6 had proposed?
7 A We rejected several items in each of the components of the
8 exam.
9 Q On what basis did you reject items?
10 A On the basis that some were unclear. On the basis that we
11 believed some did not comport with existing Illinois law or our
12 policies and procedures. And also on the basis that we
13 believed some of the questions were -- they were too abstract
14 and were not generally sophisticated enough to relate to the
15 position of -- or the activities of a police lieutenant.
16 Q Did you propose any additional topic areas that you didn't
17 observe in the Barrett materials that you saw?
18 A Yes, we did.
19 Q And was Barrett receptive to your suggestions, both on the
20 rejections and submissions for additional materials?
21 A Dr. Barrett and his staff was very receptive. As I
22 recall, they incorporated all our comments and did not include
23 the questions that we objected to and specifically included
24 questions in the areas that we recommended.
25 Q Were you in the courtroom earlier when the testimony was
197
Klein - cross
1 given regarding busy districts not following the written rules
2 of the department in the same fashion that a less busy district
3 would follow them?
4 A Yes, I was.
5 Q Do you agree with that testimony?
6 A I certainly do not.
7 Q And why is that?
8 A We have a single set of policy and procedures for the
9 entire Chicago Police Department. Whether there is an
10 individual variance in one of the geographical areas of the
11 city, it certainly would not be consistent with what our
12 department policy is that we promulgate for everyone.
13 MR. ROCKS: Thank you.
14 CROSS EXAMINATION
15 BY MR. FLAXMAN:
16 Q What's your present position, sir?
17 A I'm a lieutenant of police assigned as a coordinator at
18 our training academy.
19 Q Is that what's known as an inside job?
20 A That's correct.
21 Q And before being at the training academy did you have
22 another inside job?
23 A Yes, I did.
24 Q What was that?
25 A I was the executive assistant to the superintendent of
198
Klein - cross
1 police.
2 Q And before being executive assistant did you have another
3 inside job?
4 A Yes, I did.
5 Q When's the last time you had an outside job?
6 A In the 1970s.
7 Q And what was that assignment?
8 A I was assigned to the Englewood police district on the
9 south side of the City of Chicago for approximately four and a
10 half years. After that I was assigned to area 1 special
11 operations on high crime missions on the south side of the
12 city, and I was also assigned in -- I believe 1981 to the area
13 1 youth division on the south side of the City.
14 Q And you're familiar with all of the rules and regulations
15 and policies of the City of Chicago?
16 A I believe so, yes.
17 Q There is something called the CAPS program; is that right?
18 A The Chicago Alternative Policing Strategy, yes, that's
19 correct.
20 Q That started in 1992?
21 A Approximately.
22 Q When you went to Akron, Ohio, did you go there to job
23 validate the test?
24 A I went there as a subject matter expert to review the
25 questions and determine whether they were consistent and
199
Klein - cross
1 comported with our policies, practices and procedures.
2 Q Did you go there to form an opinion about whether the test
3 was job related?
4 A No, I did not.
5 Q As a matter of fact, all you did was to go there to look
6 at questions and to see if they were correct in terms of what
7 the practices are in Chicago; is that correct?
8 A What practices were and what our orders and directives
9 require.
10 Q Did anybody from Dr. Barrett's organization ever ask you,
11 Mr. Klein, is there anything else besides the things -- the
12 questions on this test that a lieutenant has to know?
13 A They asked us whether -- in the context of whether we
14 believed some questions were appropriate or inappropriate or
15 clear, they asked us whether any additional material should be
16 tested, yes, they did.
17 Q Did you ever -- did anybody from Dr. Barrett's
18 organization ask you to look at a job description and to see if
19 that job description was correct and complete for the position
20 of Chicago police lieutenant?
21 A Not that I recall.
22 Q Is that something that you would have been able to do, to
23 look at a job description to say whether this is complete and
24 correct?
25 A I could --
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Klein - cross
1 MR. ROCKS: Objection, Your Honor, to the form of the
2 question. Are we talking about a job description or the job
3 analysis by Barrett?
4 THE COURT: Fair objection. Could you rephrase the
5 question?
6 BY MR. FLAXMAN:
7 Q If you looked at a job description of the position of
8 lieutenant of the City of Chicago, would you be able to say
9 this job description is complete or it's incomplete?
10 A I would be able to see in my opinion whether or not I
11 believed the components of the job description fairly and
12 accurately reflected the duties of a police lieutenant.
13 Q Is one of the duties of a police lieutenant to be able to
14 write clearly and concisely?
15 A I don't believe it's a duty of a police lieutenant. I
16 believe it's one of the necessary attributes of a police
17 lieutenant.
18 Q Is that an important part of the job?
19 A I believe it's an important part of any job.
20 Q And is the ability to understand oral communication an
21 important part of the job of police lieutenant?
22 A Yes, it is.
23 Q And do you know whether or not -- as you sit here now do
24 you know whether or not those two attributes, the ability to
25 write clearly and concisely and understand oral communication,
201
Barrett - direct
1 do you know whether or not those were tested in the -- in the
2 current lieutenant's test that's at issue in this case?
3 A I'm not an expert in the construction of examination
4 questions.
5 Q Do you have -- you have a law degree; is that right?
6 A That's right.
7 Q You don't have an industrial psychology degree?
8 MR. FLAXMAN: Thank you. Nothing further.
9 MR. ROCKS: Nothing.
10 THE COURT: Thank you, sir. You're excused.
11 (Witness excused.)
12 MS. GLINK: Your Honor, we would like to call
13 Dr. Gerald V. Barrett.
14 THE COURT: Dr. Barrett, you're still under oath.
15 THE WITNESS: Thank you.
16 GERALD V. BARRETT, DEFENDANT'S WITNESS, PREVIOUSLY SWORN
17 DIRECT EXAMINATION
18 BY MS. GLINK:
19 Q For the sake of brevity and the late hour I'll try to
20 cover your background briefly and just fill in the gaps --
21 THE COURT: Is there a CV?
22 MS. GLINK: We do have a curriculum vitae. It's
23 attached --
24 MR. FLAXMAN: We'll stipulate that the curriculum
25 vitae fully and fairly sets out his background and
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Barrett - direct
1 accomplishments.
2 THE COURT: If it hasn't been submitted, you may
3 submit it as an exhibit.
4 MS. GLINK: It will be a part of one of the
5 documents. I still would like leave of court to ask a few
6 questions of Dr. Barrett.
7 THE COURT: Sure.
8 BY MS. GLINK:
9 Q Dr. Barrett, you said earlier that you were on the faculty
10 at the University of Akron. What's your position on the
11 faculty?
12 A A professor.
13 Q Do you have any other responsibilities to that department?
14 A No.
15 Q Do you have any other -- other than a Ph.D. in industrial
16 psychology, do you have any other advance degrees above and
17 beyond your master's in industrial psychology?
18 A I have a law degree.
19 Q And why did you get your law degree?
20 A To assist me in teaching my Ph.D. graduate courses. What
21 occurred was that until the Title VII was passed in 1964, legal
22 issues were not part of our field. It was never considered.
23 After that date it became very important.
24 So I decided to obtain a degree to understand the
25 legal concepts and assess me in my teaching and research.
203
Barrett - direct
1 Q Your teaching, is it specialized in any particular area?
2 A Yes.
3 Q And what area is that?
4 A It's testing, personnel selection.
5 Q How long have you been teaching courses on personnel
6 selection?
7 A Since 1968.
8 Q You testified earlier today that you have also published
9 at least 130 articles in your field; is that correct?
10 A Yes.
11 Q And have those articles been in peer review journals?
12 A Yes.
13 Q And what does that mean?
14 A That means that your -- there is an editorial board of
15 people in industrial psychology or in psychology, whatever
16 field it might be, submitted to. They review the article and
17 make comments and it's accepted or rejected based upon the peer
18 review process.
19 Q Have any of those articles dealt with personnel selection
20 or performance tests?
21 A Yes.
22 Q And can you give me an estimate of how many of those
23 published articles involve examination development?
24 A Well, in terms of broad issues of personnel selection, I
25 would say 30 or 40 probably do.
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Barrett - direct
1 Q You also testified that you were a member of many
2 professional organizations; is that correct?
3 A Yes.
4 Q Are you on the board of directors of any of these
5 organizations?
6 A Yes.
7 Q And which organizations are you on the board of directors?
8 A The American Board of Professional Psychology for --
9 Industrial Organizational Psychology, which is a diplomate in
10 paraprofessional practice. That's the only one.
11 Q And what does it mean to be a diplomate?
12 A That means that you have achieved a degree of excellence
13 in professional practice in the field.
14 Q Are you also a fellow of any organizations?
15 A Yes.
16 Q And what does that mean?
17 A Again it is -- you have been selected by your peers for
18 outstanding achievement in your field, usually in terms of
19 research and service. In the American Pyschological
20 Association, I'm a fellow in that organization.
21 Q I'll turn to your test development process and let -- your
22 test development experience and let the rest of your curriculum
23 vitae stand for itself.
24 You mentioned earlier that you were a principal of a
25 consulting firm named Barrett & Associates; is that correct?
205
Barrett - direct
1 A Yes.
2 Q What does Barrett & Associates specialize in?
3 A We specialize in human resource consulting activities.
4 Q As part of the Barrett & Associates -- or is Barrett &
5 Associates involved in the development and selection --
6 development of selection and promotional examinations?
7 A Yes.
8 Q How long have you personally been developing selection and
9 promotional examinations?
10 A Since 1960.
11 Q And how long has Barrett & Associates been in the business
12 of developing promotional and selection examinations?
13 A 1973.
14 Q During your course of your career and as the principal of
15 Barrett & Associates can you estimate how many examinations you
16 have developed?
17 A It would be hundreds. I don't know the exact number.
18 Often we'll do 20 or 30 at least a year of tests we'll develop.
19 Q And have you developed examinations in the safety force
20 field?
21 A Yes, since 1973.
22 Q And when I say safety force field, I'm implying fire and
23 police departments.
24 A Yes.
25 Q Is that your understanding?
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Barrett - direct
1 A Yes.
2 Q Have you ever developed fire and police examinations for
3 municipalities?
4 A Yes.
5 Q How many municipalities have you developed such
6 examinations?
7 A I guess a dozen.
8 Q Can you give me an example of a few of the municipalities
9 that you developed police and fire examinations?
10 MR. FLAXMAN: Judge, I would like to interpose an
11 objection that this is probably not probative and certainly --
12 we are not disputing anything about his background, and it's
13 late and probably there is more relevant things to move on to.
14 THE COURT: Are you weary? Is that what you're
15 saying?
16 MR. FLAXMAN: Well, there is a rule about -- I forgot
17 what the rule is.
18 THE COURT: It's called gilding the lily.
19 How much of this do you have? I mean if this is all
20 in his CV, you can be assured that I will take it into account.
21 Dr. Barrett seems highly qualified. Do you agree?
22 MR. FLAXMAN: We've never challenged his
23 qualification.
24 MS. GLINK: I would like to just touch briefly, Your
25 Honor, on his past -- the past litigation experience he's had
207
Barrett - direct
1 involving his examinations he's developed.
2 THE COURT: Go ahead. Do you have any witnesses
3 after Dr. Barrett?
4 MS. GLINK: No, we do not, Your Honor.
5 THE COURT: Okay. I have one question that I meant
6 to ask Mr. Klein. So don't leave, Mr. Klein.
7 MS. GLINK: Would you like to do so now?
8 THE COURT: No, no. Go ahead. Finish Dr. Barrett
9 up while he's here.
10 MS. GLINK: He's gone.
11 THE COURT: Oh, he's gone. Well, maybe I can ask
12 somebody else. I could probably ask somebody else.
13 BY MS. GLINK:
14 Q Dr. Barrett, have any of the police and fire promotional
15 exams that you have developed for other municipalities other
16 than the City of Chicago been challenged under Title VII?
17 MR. FLAXMAN: Objection. That's not relevant.
18 MS. GLINK: Your Honor, I believe it goes to --
19 THE COURT: Overruled. I'll let him answer.
20 BY THE WITNESS:
21 A Yes.
22 BY MS. GLINK:
23 Q What kind of examination -- can you give me an example of
24 one of your examinations that's been challenged?
25 A I have been in police and fire since 1973 in Akron, in the
208
Barrett - direct
1 city of Columbus, for example, two examples.
2 Q What was the basis for the challenge to these
3 examinations?
4 A That it was alleged adverse impact and it was alleged the
5 tests were not -- not job related.
6 Q And when you say job related, would you say job related is
7 synonymous with valid?
8 A Yes.
9 Q And were any of these examinations that have been
10 challenged found to be not job related?
11 A No.
12 Q Let's move on to your experience with the City of Chicago.
13 At some point in time did the City of Chicago
14 approach you to develop a lieutenant -- police lieutenant
15 promotional examination?
16 A Yes.
17 Q What, if anything, did you agree to do on behalf of the
18 City of Chicago?
19 A We agreed to develop a valid nondiscriminatory test
20 battery for the City of Chicago.
21 Q What do you mean by valid?
22 A Valid means it's job relevant. It's a term of art in our
23 field. I proposed to develop a content valid test battery for
24 Chicago police lieutenant.
25 Q And why did you choose to employ content valid strategy in
209
Barrett - direct
1 developing your examination?
2 A Basically in the modern police departments with the
3 history of litigation, it's impossible to use any sort of
4 criterion-related validation process.
5 Q Let me stop there. What is criterion-related process?
6 A That's where you test a group of individuals -- say it's a
7 concurrent study. You would test a group of present
8 lieutenants on test battery, and then you would obtain at the
9 same time some measure of job performance, and then you
10 correlate the test scores with the job performance to see if
11 empirically there is a relationship between the test scores and
12 the job performance.
13 Q And you said that it was impossible to do such a study.
14 Why -- in your professional opinion why do you say that?
15 A Well, there's at least two reasons. One is that once you
16 gave a test battery in the City of Chicago with the present
17 Chicago lieutenants, every item would be exposed. In other
18 words, it would no longer be a secret. They would reproduce
19 that test battery.
20 The second reason is from my experience people are
21 reluctant now to give good performance appraisals of other
22 officers because of fear of being called biased or charges of
23 discrimination might be lodged against a person who in effect
24 did a performance appraisal of lieutenants.
25 Q And so you decided to -- so you decided to develop a
210
Barrett - direct
1 content valid test?
2 A Yes.
3 Q Is content validity something that's recognized -- let me
4 strike that.
5 Are you familiar with the uniform guidelines in
6 employee selection procedure?
7 A Yes.
8 Q And does the -- do the uniform guidelines set forth
9 various methods in which a test developer can validate his or
10 her examination?
11 A Yes.
12 Q And is the content validity approach one of the types of
13 validation that's recognized by the uniform guidelines?
14 A Yes.
15 Q Do the uniform guidelines specify that any particular type
16 of validation is better than another?
17 A No.
18 Q In your professional experience as a test developer, is
19 there any one method of validating an examination that is
20 better than another?
21 A No.
22 Q You also said that you wanted -- it was your -- that you
23 were going to try to develop a nondiscriminatory examination.
24 What did you mean by that?
25 A Well, an exam which would try to -- which would be
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Barrett - direct
1 relevant, would be valid, and would not discriminate based upon
2 race or any other factor. There would be no intentional
3 discrimination; and if there was adverse impact, we could show
4 in fact that the testing process was job relevant or valid.
5 Q Could you briefly describe for me the stages of the test
6 development process for the development of the police
7 lieutenant examination.
8 A The -- we can make it simple and talk about two main
9 stages.
10 The first stage is the job analysis stage. And in
11 this stage we go through and we interview the police
12 lieutenant's supervisors.
13 Now, in this situation we had an advantage. We had
14 two advantages. One, we had just completed a project with
15 police sergeants where we had also interviewed police
16 lieutenants. So we had some idea of not only the job duties
17 and responsibilities of the sergeants, but also we had
18 interviewed the lieutenants who were the sergeants'
19 supervisors. So we had a good idea of how the two jobs
20 articulated.
21 We also had a second advantage.
22 Q Go ahead.
23 A And that is we had a document put out by H.R. Strategies
24 who had previously performed a job analysis and documented it a
25 few months before we started the project. So we had that
212
Barrett - direct
1 information also.
2 Q And a job -- how would you define a job analysis?
3 A A job analysis is a systematic way of collecting
4 information about the job, and the goal is to create a job
5 description which contains the major work behaviors; and from
6 each major work behavior you can determine what knowledge or
7 skills or abilities are required to perform that major work
8 behavior.
9 Q Are there guidelines, professional guidelines or standards
10 that are established which tell you how a job analysis should
11 be conducted?
12 A Well, in the field there are many different ways to do a
13 job analysis, and there is no one standard that says here's the
14 way it must be done. The approach we used was an interview
15 approach.
16 Q Other than -- you already mentioned that you had some
17 information about the job of lieutenant from both the H.R.
18 Strategies report and from your -- the information you had
19 gained from the job analysis process for the job of sergeant;
20 is that correct?
21 A Yes.
22 Q If you had a job analysis that was conducted by H.R.
23 Strategies, why did you go on and conduct your own job
24 analysis?
25 A I wanted to obtain more detail about the job so we could
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Barrett - direct
1 construct the appropriate content valid test. The test
2 development process, which is the second part of the process,
3 relies upon detailed knowledge about the job of police
4 lieutenant. So we would concentrate, for example, in learning
5 about various aspects of the police lieutenant job in our
6 interview process in order to help us construct the content
7 valid relevant test.
8 Q You have said you conducted interviews as part of your job
9 analysis. Let's talk briefly about that.
10 How many lieutenants and supervisory personnel, if
11 any, did you interview during this process?
12 A We interviewed over 50 people, as I recall.
13 Q I'm going to -- for sake of ease I'm going to hand you a
14 copy of the test report that you submitted.
15 MS. GLINK: Do you want a copy, Your Honor?
16 THE COURT: Eventually.
17 MR. FLAXMAN: Judge, you already have a copy in the
18 summary judgment.
19 MS. GLINK: It's part of the summary judgment
20 package.
21 THE COURT: Do I need it, do you think?
22 Well, give it to me.
23 (Document tendered.)
24 BY MS. GLINK:
25 Q Dr. Barrett, is that the report that you submitted to the