1
1 IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
2 EASTERN DIVISION
3 ADAMS, et al., ) Docket No. 94 C 5727
)
4 Plaintiffs )
)
5 v. ) Chicago, Illinois
) March 5, 1996
6 THE CITY OF CHICAGO, ) 9:10 o'clock a.m.
)
7 Defendant )
8
9 VOLUME I
TRANSCRIPT OF TRIAL
10 BEFORE THE HONORABLE JOHN A. NORDBERG
UNITED STATES DISTRICT JUDGE
11
APPEARANCES:
12
For the Plaintiffs: LAW OFFICES OF KENNETH N. FLAXMAN
13 By: MR. KENNETH N. FLAXMAN
122 South Michigan Avenue, Suite 1850
14 Chicago, Illinois 60603
15 For the Defendant: CITY OF CHICAGO
By: MS. SHONA B. GLINK
16 MS. DARKA PAPUSHKEWYCH
MR. JAY KERTEZ
17 30 North LaSalle Street, Suite 1020
Chicago, Illinois 60602
18
19
Court Reporter: Carol Matz
20 343 South Dearborn Street, Suite 319
Chicago, IL 60604
21
22
23
Proceedings recorded by mechanical stenography, transcript
24 produced by computer.
25
2
1 (Call to Order of the Court)
2 THE COURT: 94 C 5727, Adams, et al., versus the City
3 of Chicago, case called for preliminary injunction hearing.
4 THE COURT: Good morning, all. If we can have both
5 sides log in for the record now.
6 MS. PAPUSHKEWYCH: Good morning, your Honor. My name
7 is Darka Papushkewych. I filed an appearance last week in this
8 case on behalf of the City of Chicago.
9 MR. KERTEZ: Good morning, your Honor. Jay Kertez on
10 behalf of defendant City of Chicago.
11 MS. GLINK: Good morning, your Honor. Shona Glink,
12 on behalf of the City of Chicago defendant.
13 MR. FLAXMAN: Kenneth Flaxman for the plaintiff.
14 And joining me at counsel table when he comes back
15 from the washroom is Kenneth Webb, who's one of the plaintiffs.
16 THE COURT: All right. And I'm mindful of the
17 instruction that a greater number on one side rather than
18 another isn't necessarily dispositive.
19 All right. We first of all have a motion in limine
20 on the question of admissibility of the proposed witnesses for
21 the plaintiff denominated nonexpert CBD witnesses regarding the
22 scoring of the 1993 Sergeant examination.
23 And I have gleaned from the plaintiffs' material that
24 has been filed that plaintiff is relying on the case of
25 Gillespie versus the State of Wisconsin, and I have that case
3
1 out here.
2 Do we have any further argument that plaintiffs may
3 wish to make, Mr. Flaxman, on the admissibility of the
4 Sergeants in connection with this proceeding now?
5 MR. FLAXMAN: Well, yes, Judge.
6 The motion in limine doesn't really focus on what
7 these subject matter experts, these Sergeants are going to
8 testify to.
9 They're going to testify that they have reviewed the
10 written test, that they are familiar with what a Chicago Police
11 Sergeant does, and that, based on their review, they have con-
12 cluded that some questions are important for a Sergeant to
13 know, some questions are not important for a Sergeant to know,
14 and some questions are ambiguous or incorrectly keyed.
15 They're not going to --
16 THE COURT: Where do you get support for that in
17 Gillespie versus the State of Wisconsin?
18 MR. FLAXMAN: The page that I cited talks about --
19 THE COURT: Page 1043.
20 MR. FLAXMAN: At 1043 there's a reference -- there's
21 a --
22 THE COURT: Since the record amply demonstrates that
23 the employees were knowledgeable about the positions they were
24 qualified to be job specialists.
25 Job specialists can't testify as to the validity of a
4
1 test. They testify as to the requirements of the job.
2 MR. FLAXMAN: That's all they're going to testify to,
3 to what a sergeant does, and that these questions don't ask
4 about things that are important to what a sergeant does.
5 They're not going to offer testimony or opinions
6 about a passing score or about whether a test is valid or
7 whether there are alternative selection devices that are as
8 valid.
9 They're not industrial psychologists, they're expert
10 Police Sergeants, and they know about policing. That's what
11 they're going to talk about.
12 MR. KERTEZ: Your Honor, may I respond?
13 THE COURT: The job requirements of being a sergeant?
14 MR. FLAXMAN: Right. And that some things are not
15 related to -- are not important --
16 THE COURT: Well, see, that's the next step, though,
17 now. And I think that's the part, I take it, that the City is
18 focusing on?
19 MR. KERTEZ: That's correct.
20 THE COURT: I take it there's really no objection to
21 sergeants testifying as to what the requirements for the
22 position of sergeant --
23 MR. KERTEZ: No, there's not, Judge.
24 THE COURT: -- would be?
25 Because I certainly would think that they would
5
1 qualify as expert in that area.
2 I think the dispute is going beyond that to testify
3 as to the validity of the test or the grading or alternate
4 methods of selection.
5 MR. FLAXMAN: That isn't what I was going to ask
6 them.
7 I think this is really something that you could take
8 up and rule on without a -- much easier when you've heard the
9 question, and then --
10 THE COURT: Well, I know.
11 And this is an ongoing proceeding, so that the rules
12 aren't -- a ruling on general principles doesn't necessarily
13 forestall further objections or challenges.
14 But I think it's helpful to set the basic principles,
15 I think, by which I'm going to try to rule on admissibility.
16 It seems to me that the Gillespie case is consistent
17 with other cases that have been cited, and with the --
18 consistent with the regulations of the EEOC and the like that
19 deal with the requirement of psychological expertise in this
20 area.
21 So that I would find that somebody who is a Chicago
22 Police Department Sergeant, or has been a Sergeant and has
23 moved up in the ranks or the like would undoubtedly be
24 qualified based on their experience and the training that they
25 have received in their positions to testify about the position
6
1 of a sergeant, what it encompasses, and what it requires; in
2 effect, what the sergeant is expected to do.
3 But I would find that unless the individual witness
4 has had an education in psychological testing or psychometrics
5 or allied fields that are referred to in preparing and
6 administering tests -- that they should not be able to testify
7 as to either the validity of the present test, the validity of
8 the grading of a test, the number of correct answers that might
9 appropriately be required, or any alternate selection devices
10 that might be as valid as the test that's in question.
11 And so -- and I think that's consistent with the case
12 of Gillespie versus the State of Wisconsin, 771 Fed.2d at 1035,
13 at 1043, a 1985 Seventh Circuit decision.
14 So, with that, it would be helpful to me, then, as I
15 indicated before, that we first have -- and they can be
16 briefed, certainly, in summary fashion -- but that we have
17 opening statements from both sides, and then we'll proceed with
18 the taking of the evidence that is going to be sought to be
19 presented.
20 At the end -- well, was there an indication that
21 today -- or was it tomorrow that you had a --
22 MR. FLAXMAN: 3:00 o'clock today.
23 THE COURT: Today?
24 MR. FLAXMAN: Yeah.
25 THE COURT: All right. So when would you --
7
1 MR. FLAXMAN: 2:55.
2 THE COURT: Well, we're not going to cut you that
3 close.
4 MR. FLAXMAN: I just have to go upstairs.
5 THE COURT: You can't count on the elevators in this
6 building, and it's too far for you to run up.
7 So it would seem to me, then, that if we, say, went
8 to 1:30 today and then we will break for the day, and then
9 we'll see where we are.
10 I take it we won't -- does anybody else have a prob-
11 lem on the following days then, Wednesday or Thursday?
12 MS. PAPUSHKEWYCH: We just have a couple of prelimi-
13 nary scheduling problems, your Honor.
14 We have our expert, Dr. Barrett, who is available
15 only today and tomorrow and has to fly back to Ohio on
16 Thursday.
17 THE COURT: All right.
18 MS. PAPUSHKEWYCH: We have spoken to Mr. Flaxman
19 about scheduling his subject matter experts tomorrow morning so
20 that our expert can hear the testimony, and in our case we're
21 going to take him, hopefully, out of sequence.
22 THE COURT: So we can concentrate on the experts
23 tomorrow then?
24 MS. PAPUSHKEWYCH: That's right.
25 THE COURT: Okay.
8
1 MS. PAPUSHKEWYCH: That's right.
2 MR. FLAXMAN: We're going to put on Dr. Barrett
3 today.
4 THE COURT: You're going call him as an adverse
5 witness?
6 MR. FLAXMAN: Yes.
7 THE COURT: Okay. All right.
8 MS. PAPUSHKEWYCH: But, to the extent that we
9 would --
10 THE COURT: All right. Since to some extent he's in
11 the form of a rebuttal witness in that he will be testifying as
12 to matters that your expert has testified to, then he's going
13 to have to be called back again, I take it?
14 MS. PAPUSHKEWYCH: Right.
15 THE COURT: All right.
16 MS. PAPUSHKEWYCH: And we have another preliminary
17 matter, your Honor. The City of Chicago would like to move for
18 a denial of the preliminary injunction motion on the basis that
19 the plaintiffs cannot prove as a matter of law that there is
20 irreparable injury in this case.
21 For that proposition we cite to the case law that we
22 cited in our brief, and that is Wilcox and Seashon and Irwin,
23 which is a case where Magistrate Bucklo found on the plead-
24 ings --
25 THE COURT: Right.
9
1 MS. PAPUSHKEWYCH: -- that a delay in promotion is
2 not sufficient to cause irreparable injury or to prove
3 irreparable injury.
4 Furthermore, we also bring to the Court's attention
5 Judge Gettleman's ruling in Brown versus the City of Chicago.
6 Although Judge Gettleman did go forward with the
7 hearing and adduced facts both to irreparable injury and
8 likelihood of success on the merits, he found that there was no
9 irreparable injury and delay, there was no stigma attached, and
10 that, therefore, under Abbott Labs, the injunction could have
11 been granted after that finding.
12 We would also just reference plaintiffs' brief on
13 page 3, where plaintiff basically says that it is impossible to
14 identify which plaintiffs in this case would be promoted. And,
15 therefore, it's the City's position that plaintiffs cannot meet
16 their burden on irreparable injury and, therefore, the motion
17 should be denied.
18 THE COURT: All right. It would be my view, since
19 it's likely that an appeal will be taken whatever the decision
20 would be in this case -- not being a King Solomon, I'm sure
21 that I'm not going to be able to devise a decision that would
22 satisfy everybody in a case like this -- it seems to me that
23 it's going to be important that we at least have the basic
24 facts established with more particularity, perhaps, than you
25 could have should there be a formal hearing on it on what is
10
1 claimed to be a threshold matter at this point.
2 I think it's going to be helpful to have opening
3 statements from both sides. And my own opinion is that because
4 of the perceived time urgency that seems to be indicated here
5 and because of the schedule of the affairs of the City that
6 will indicate demands on the Police Department in the coming
7 months, it seems to me that it would be important to have as
8 complete a record as possible for the Appellate Court to work
9 with.
10 And if this were ruled as a pure question of law at
11 this point and the Court ruled in error saying, for example,
12 that the case would not go forward, it seems to me that what
13 that does is puts at risk many things, particularly with
14 respect to the time availability.
15 And so I'm going to grant you leave to make this
16 motion but I'm going to continue a further hearing and ruling
17 on that motion until we get started with the case, and we'll
18 give further consideration to it at the end of the day.
19 All right --
20 MS. PAPUSHKEWYCH: One other preliminary matter, your
21 Honor.
22 THE COURT: Yes. Okay.
23 MS. PAPUSHKEWYCH: I'm sorry. Tomorrow, when Mr.
24 Flaxman's subject matter experts are going to be testifying, we
25 anticipate that they are going to be going through the
11
1 questions of the examination.
2 As you know, we have a motion for a protective order
3 that covers this examination and disclosure of any of the
4 questions, and, therefore, we just wanted to raise that issue
5 with the Court.
6 And, although we have a lot of witnesses and
7 everybody else will sit in, then the City's position is that
8 the courtroom should be sealed during that testimony.
9 THE COURT: Oh, boy.
10 Mr. Flaxman, what is your position on it?
11 MR. FLAXMAN: We don't think the courtroom should be
12 sealed. We think your Honor was in error on the protective
13 order.
14 But I think this is a public proceeding --
15 THE COURT: Is there a way to elicit testimony
16 without reading the questions or using the exact language of
17 the questions?
18 MR. FLAXMAN: I think that's what we will be able --
19 we were able to do pretty well in the Lieutenants hearing, and
20 I think we'll be able to do it here without disclosing the
21 entire test --
22 THE COURT: One alternative would be to require all
23 those present at the hearing to sign the same agreement to keep
24 confidential any information they receive.
25 But I have to tell you the idea that we'd have to
12
1 take names and addresses and have people sign, and the like, it
2 makes it very difficult when we're dealing with a public trial.
3 On the other hand, the bringing of an action should
4 not destroy the ability of a governmental entity to preserve
5 the value of that that, I take it, cost some considerable sum,
6 a test that it cost a considerable sum to prepare.
7 Let me give more thought to that, and let everybody
8 give more thought to it.
9 But it seems to me the first line would be to see if
10 it's at all possible not to refer to any exact questions,
11 because that, in a sense, is the threshold problem.
12 It's not clear to me whether the City has made any
13 statement yet as to what's going to happen with this test as to
14 whether they propose to use it for promotions in years to come
15 or whether they have agreed to have just a finite number
16 appointed through the use of this particular test.
17 MS. PAPUSHKEWYCH: Well, from this particular
18 examination we are just promoting a finite number through the
19 end of this year. But in terms of the --
20 THE COURT: And that the test will not be used for
21 further promotions after that?
22 301 is the number, the magic number?
23 MS. PAPUSHKEWYCH: That's right.
24 THE COURT: And no further promotions would be made
25 from this test?
13
1 MS. PAPUSHKEWYCH: That's right.
2 But to the extent that the test is ours --
3 THE COURT: And if it's found to be valid.
4 MS. PAPUSHKEWYCH: Correct.
5 THE COURT: So that at least a portion of it could be
6 used.
7 But it seems to me that this must arise in all of
8 these cases, and, to the extent that any of the witnesses have
9 testified in other cases, I take it it's essentially -- you're
10 faced with the same question on all of them.
11 And it would seem to me that that at least 95 percent
12 of the testimony could be achieved without revealing any
13 specific questions. If there is the need for some short period
14 of time on some specific questions to be more specific, we
15 might be able to deal with that separately.
16 But the idea that the entire day is going to be
17 restricted, to restrict the public, it just seems to me it is
18 probably not necessary or appropriate.
19 So we'll also give that further thought.
20 Anything else then?
21 MS. PAPUSHKEWYCH: No.
22 THE COURT: Okay.
23 MR. FLAXMAN: One other thing.
24 THE COURT: All right.
25 MR. FLAXMAN: We have agreed that we will not be
14
1 sequestering witnesses --
2 MS. PAPUSHKEWYCH: Right.
3 MR. FLAXMAN: -- that everybody who is a witness for
4 anybody can come in and watch the public proceeding.
5 THE COURT: All right. I think that makes sense
6 because of the special nature of the proceeding.
7 (Discussion off the record)
8 THE COURT: All right. Anything else now before we
9 begin with the opening statements?
10 All right, we'll start with Mr. Flaxman, then. And,
11 unless you're addressing the Court, you may be seated.
12 And I don't have any rules about how you conduct
13 yourself in court as long as you are professional.
14 So, with that, you may proceed.
15 MR. FLAXMAN: Thank you, your Honor.
16 OPENING STATEMENT
17 MR. FLAXMAN: In 1973 the United States of America
18 sued the City of Chicago challenging hiring and promotions in
19 the Chicago Police Department. Since that day, or since 1974,
20 as a result of federal decrees, the hiring and promotion
21 practices of the City of Chicago have changed.
22 I think in 1974 10 percent of the sergeant work force
23 was minority. Before this test was given nearly 30 percent was
24 minority. The goal of the court decrees was to make the Police
25 Department at all of its ranks reflective of the population of
15
1 the City of Chicago.
2 We will have the stipulated testimony of the Police
3 Superintendent, Mr. Rodriguez, that that's a good thing, that
4 the Police Department should be reflective of the community, it
5 shouldn't be one race policing another race.
6 And I think we'll have testimony from some subject
7 matter experts that it's good when a supervisor arrives on the
8 scene of a tense situation who is the same race as the people
9 who are involved in the tense situation.
10 I think everybody agrees that it's good that the
11 Police Department be diverse, that it not be limited to people
12 of one race. I think everybody also agrees that there's
13 nothing genetic about being a good police sergeant, about being
14 a good police officer, that the African-American and Hispanic
15 police officers are as a group just as capable and qualified to
16 be police sergeants as white officers.
17 And that's what Superintendent Rodriguez said in his
18 deposition that we're going to be stipulating to the admissi-
19 bility of.
20 So we start with that equality of promotability, and
21 we have a test which doesn't have an output that reflects that
22 equality of promotability. We have a test that, I think, 42
23 percent of the people who took it are African-American and
24 Hispanic and we end up promoting from that test about 11
25 percent African-American and Hispanics.
16
1 If we believe Superintendent Rodriguez -- and there's
2 not going to be any evidence that he's wrong on this -- some-
3 thing's wrong with the test if African-American and Hispanic
4 police officers are as a group just as capable and qualified to
5 be police sergeants as white officers. Then there's something
6 wrong with the test that doesn't select them at parity with
7 those who applied.
8 THE COURT: How were the applicants who took the test
9 selected?
10 MR. FLAXMAN: The applicants were self-selected. And
11 I think --
12 THE COURT: So the self-selection might not be, in
13 effect, a scientific sampling of the groups?
14 MR. FLAXMAN: That's absolutely correct.
15 And I think the numbers are that more African-
16 Americans and Hispanics as a group took the test. I think the
17 African-Americans and Hispanics made up about 30 percent of the
18 police officer work force but made up 42 percent of those who
19 applied for promotion and took the test.
20 And it might be that there was an over- -- that they
21 were self-selected and they were overrepresented. And we're
22 not -- and our position is not that if 42 percent applied then
23 42 percent should be promoted. Our position is that if there
24 are 30 percent who are eligible to take the test and who are as
25 a group just as capable and qualified to be promoted, then
17
1 something close to 30 percent should be those that are
2 promoted.
3 And 27 percent would be close, 35 percent would be
4 close. But 11 percent, which is the number that we have, is
5 not close. It's far lower than -- it goes back to the
6 promotion rate before the first decree was entered by Judge
7 Marshall.
8 Now, the City agrees that the statistical evidence
9 makes out a prima facie case of disparate impact discrimina-
10 tion. There's this 80 percent rule of thumb, which I think
11 your Honor is probably familiar with, which is easily met and
12 there's no dispute among the parties in this case that there is
13 a prima facie case of disparate impact discrimination.
14 That requires at a trial on the merits for the City
15 to prove that the test is job-related.
16 For the past twenty years the City has come into
17 court with a variety of experienced, highly paid, highly
18 professional industrial psychologists who have testified about
19 the extensive work that they did to prepare a valid test.
20 Every time that's happened the Court has said "Well,
21 you have sincere intentions but this test is not valid. It
22 can't be used to make rank order promotions." And I think in
23 this case when the Court hears the evidence the Court will
24 reach the same conclusion.
25 The evidence -- I mean, there's an agreement. In
18
1 this case the test was prepared for the City by a experienced,
2 well respected, highly paid industrial psychologist named
3 Gerald Barrett. He's been doing this stuff for almost forty
4 years.
5 He's going to tell you that in 19- -- sometime in the
6 1970s, when he realized that his line of work was being taken
7 over -- and that might not be the right word -- by lawyers and
8 judges, he decided he ought to go to law school so that he
9 could compete on a equal, level playing field with lawyers and
10 judges, and he went to law school and he has a J.D. And he's
11 going tell you that he's licensed to practice law. And at some
12 time when he's testifying we might have trouble putting in one
13 side when he's an industrial psychologist and another side when
14 he's a lawyer advocating a position for a client.
15 Now, Dr. Barrett is going to tell you that his firm
16 was hired by the City of Chicago to prepare a non-
17 discriminatory valid test. And he's going to tell you about
18 the work that they did to prepare the test.
19 And one of the things he's going to tell you, I
20 think, that their goal throughout the entire process was to
21 leave a paper trail to explain the work that they did and how
22 they reached certain results.
23 I think we're going to show you through cross
24 examination of Dr. Barrett that the paper trail is broken, that
25 the paper trail is bread crumbs that were eaten by the birds
19
1 and that it doesn't follow from the beginning point to the end
2 point, that there are gaps in the paper trail.
3 I think we're going to show you that the format of
4 the test -- and the test consists of a written short answer
5 test of 150 multiple-choice questions, something called an in-
6 basket, which had 60 short answer questions, and something
7 called an oral examination, where the police officer reviewed
8 written material and spoke into a tape recorder and that tape
9 recorded story was graded at a later time -- that that format
10 of a test was decided before a job analysis was undertaken by
11 Dr. Barrett.
12 That's exactly the same mistake that Judge Marshall
13 identified in his opinion that we attached to our trial brief
14 about the 19- -- I think it was the '78 Sergeant's test -- that
15 the test was designed and then the job analysis was done.
16 And then we're going to hear from Dr. Barrett about
17 the job --
18 THE COURT: Well, I mean, are you saying the test is
19 designed by a decision on whether to use a oral exam or
20 written answers?
21 Because I understand from what you're saying that
22 they hadn't determined what the questions were going to be,
23 they just determined the form of the answer.
24 MR. FLAXMAN: Well, they determined that there would
25 be three parts to the test, an in-basket, an oral exam, and a
20
1 written short answer job knowledge test before doing any job
2 analysis, and that after the job analysis --
3 THE COURT: And that form of the answer, you say, is
4 one of the problems with the test?
5 MR. FLAXMAN: That's correct. Because when you go
6 back and -- well, in doing their -- after deciding what format
7 the tests would be, Dr. Barrett and his colleagues performed a
8 job analysis, and the job analysis involved talking to subject
9 matter experts and structured interviews and making a master
10 job description of the position of sergeant. And that's --
11 that master job description is Exhibit -- is Appendix C to Dr.
12 Barrett's big report that the City gave to you.
13 After that job analysis was done it was put aside and
14 work was undertaken to prepare a job knowledge test and
15 important general orders and statutes and rules were identified
16 and questions were written and questions were reviewed. And
17 then after the questions were written and after it was made, to
18 say "Well, which parts of the job do these questions relate
19 to?"
20 And there's a table that's part of that big exhibit
21 which shows that, and we're going to ask Dr. Barrett about some
22 of those domain mapping, I think is the phrase, and we're going
23 to see that there are many important aspects of the job of
24 police sergeant which aren't measured in any of the three
25 tests.
21
1 We're going to see, I believe, that the three tests
2 overemphasize certain areas of the job and that if you look at
3 the job -- or if you look at the tests and the job description
4 and try to -- like the three blind men feeling the elephant,
5 trying to see what's there -- and we're going to hear this from
6 Professor Jenks tomorrow -- that what you come away with is
7 thinking that "Well, what a police sergeant does is to sit at a
8 desk and tell people what to do, that there's no sense that
9 what a police sergeant does is to go out in the field and
10 supervise people, that this test and these three parts of the
11 test don't really reflect what the job of being a police
12 sergeant is all about, that they're instruments.
13 And Dr. Barrett will tell you that they're very
14 reliable instruments, but he'll also tell you that reliability
15 doesn't mean that they measure the job or predict success on
16 the job, reliability means if you take the test today you'll do
17 as well as if you take the test tomorrow, that repeated
18 measures is -- reliability is about repeated measures, it's not
19 about validity or about the ability to predict success.
20 Now, there are some very important aspects of being a
21 police sergeant that I think everybody who's a subject matter
22 expert will agree to.
23 One of them is the ability to understand oral
24 communication, to understand what people tell you. That is not
25 directly measured at all in this test.
22
1 Dr. Barrett probably will tell you "Well, we didn't
2 measure oral comprehension because that's too expensive. What
3 we did was to measure reading comprehension, and that's really
4 the same as measuring oral comprehension."
5 I think as the finder of fact your Honor will have to
6 assess the credibility of a claim of that nature.
7 Another aspect, important aspect of the job of police
8 sergeant is the ability to write clearly and consistently in
9 writing reports. The test -- and your Honor, I'm sure, will
10 have a chance to see the test in this hearing -- don't have
11 anything to do with writing. They have short answers, checking
12 boxes, which is not part of the job of a police sergeant.
13 And Dr. Barrett will probably have some kind of
14 explanation for why the test doesn't directly measure the
15 ability to write clearly and consistently.
16 And Dr. Barrett probably will have an explanation for
17 every question that he's asked on cross examination about the
18 test. And he will, I'm sure, sit there and tell you with all
19 sincerity that he is an expert industrial psychologist, this is
20 the best test he's ever prepared, and it's not his fault that
21 only 11 percent of the people who get promoted are minorities.
22 One of the other things that we're going to be
23 focusing on in challenging the test is rank ordering. And
24 there is a disagreement between the parties about the legal
25 standard for using a test for rank order promotions.
23
1 We read Judge Marshall's decisions as requiring some
2 empirical evidence that the employer have some empirical
3 evidence to show that somebody with a higher score will do
4 better when promoted than somebody with a lower score.
5 The City doesn't read Judge Marshall's rulings that
6 way, and that's a legal question for your Honor to decide.
7 Dr. Barrett will testify that in his --
8 THE COURT: Is it your position that this prior
9 decision of Judge Marshall is and continues to be binding on
10 the City? Is there some sort of a consent decree that makes
11 this continuing --
12 MR. FLAXMAN: I think it -- well, I think it's
13 certainly persuasive --
14 THE COURT: -- or binding?
15 MR. FLAXMAN: It's not -- no, we don't -- it's -- I'm
16 not sure.
17 THE COURT: See, I'm not familiar --
18 MR. FLAXMAN: Okay.
19 THE COURT: -- with the background of this, so I'm
20 just asking because I don't have the background.
21 MR. FLAXMAN: I am not sure if we could argue that
22 the City is required to abide by the injunctive decrees and not
23 use a test with a disparate impact unless it's showed that it
24 was job-related.
25 But -- and I'm not sure of that. And I'm not sure
24
1 what the Seventh Circuit would say about that. That's one of
2 those legal issues that either party would hate to rely on
3 because we can't really predict what would happen with it with
4 certainty.
5 What we are sure of is it that Judge Marshall's
6 rulings are persuasive. They might be entitled to collateral
7 estoppel effect. Certainly they're something that should be
8 considered by the Court even if the Court says Judge Marshall
9 was wrong.
10 What is agreed is that there is no empirical evidence
11 that the City has to show that somebody with a higher score on
12 any of these tests -- the in-basket test, the job knowledge
13 test, or the oral examination -- will do better as a sergeant
14 when promoted.
15 And, in fact, the history of the City of Chicago has
16 been, when it's been making the court-ordered quota
17 promotions -- has been that it's been promoting people who
18 haven't scored as highly as other people, and there haven't
19 been problems with job performance that anybody has
20 acknowledged.
21 Dr. Barrett, I think, will tell you that, among
22 industrial psychologists, if there's a content valid test you
23 don't need empirical evidence to make rank order promotions.
24 And he certainly is -- Dr. Barrett is certainly
25 entitled to his views. He's certainly entitled to write
25
1 articles about his views. But it's up to your Honor to decide
2 what the law is on this issue.
3 And the law that has been applied is that if you're
4 going to use a content valid test -- and we do not concede that
5 the test is content valid -- but that if you are going to use a
6 content valid test you need some reason, some evidence to
7 believe that somebody who gets a higher score is going to do
8 better than somebody who doesn't get a higher score.
9 That is exactly what Professor Jenks, who is not a
10 test developer, who is not a industrial psychologist, but who
11 is a quantitative social scientist, will tell us tomorrow.
12 Dr. Jenks has published books and articles and will
13 tell you that, as a quantitative social scientist, there should
14 be some kind of evidence, some kind of data to believe that
15 people with higher scores are going to do better before you use
16 the results of a test like this that have such a discriminatory
17 impact on minorities because the costs are so high of having
18 and of reducing the representation of minorities in the higher
19 ranks.
20 We're also going to hear from the subject matter
21 experts that were the subject of the motion in limine. They're
22 going to tell you that they --
23 THE COURT: Subject matter expert means that we're
24 going to hear the sergeants --
25 MR. FLAXMAN: That's correct.
26
1 THE COURT: -- describe their jobs?
2 MR. FLAXMAN: Well, they're going to talk about what
3 sergeants do, they're going to talk about how they reviewed the
4 written short answer test after signing a protective order, and
5 that they reviewed it with me in a group of, I think, five or
6 six sergeants, and that the questions can be grouped into
7 questions that are important for a sergeant to know, questions
8 that are not important for a sergeant to know, and questions
9 that are wrong or incorrectly graded or that don't make sense
10 when you read them.
11 And we're going to hear from Dr. Barrett about how
12 there were no challenges to the written questions and, there-
13 fore, we should assume that everybody liked the written
14 questions because nobody went and complained afterwards.
15 But we're going to hear what it took to complain
16 about one of the questions, that the people who took the test
17 weren't allowed to take the test with them, that in order to
18 challenge one of the questions they were required to tell
19 Arthur Andersen, the company that was in charge of test
20 security, the question number that they were disputing and the
21 basis for their dispute.
22 And I think you'll hear testimony that that was very
23 hard to do if you didn't have the test, to go say "Well,
24 question 143 was incorrectly keyed."
25 There will be a stipulation, I believe -- I've been
27
1 led to believe that there will be a stipulation -- there will
2 be a stipulation that what would happen to the --
3 THE COURT: Do we have a stipulation as to whether
4 some of the answers that were used for the questions were in
5 error?
6 MR. FLAXMAN: No, we don't have that stipulation.
7 THE COURT: All right.
8 MR. FLAXMAN: We have a stipulation that what would
9 happen if we just graded the test using the questions that the
10 plaintiffs' sergeant experts assert were job-related, and that
11 that stipulation shows that --
12 THE COURT: Is that your magic 88 number that you
13 told them about when you sent them a letter to come to the
14 meeting?
15 MR. FLAXMAN: No. Actually, it's a -- on -- we did
16 not come out with the magic 898 number. What we came out with
17 after the meeting was that -- I think, there were 71 questions
18 or 72 questions that the sergeants agreed were important to
19 know, and if we set the passing point at 80 percent of those
20 important questions we get a test that's passed by 21 -- 21
21 applicants out of 4,500, we get 1512 white, 396 African-
22 American, 186 Hispanic, and 27 of other races.
23 We get a much smaller -- we get almost -- we get no
24 disparate impact if we just limit the test to --
25 THE COURT: I see.
28
1 MR. FLAXMAN: -- what the plaintiffs' subject matter
2 experts say are the job-related questions.
3 THE COURT: And that's 72 questions out of 150?
4 MR. FLAXMAN: That's my recollection, yes.
5 And that's testimony that we'll be presenting
6 tomorrow.
7 THE COURT: Okay. How long do you anticipate your
8 testimony is going to take now?
9 MR. FLAXMAN: We will be --
10 THE COURT: Your case in chief.
11 MR. FLAXMAN: We will be done tomorrow.
12 THE COURT: Oh. All right.
13 MR. FLAXMAN: That's -- we will -- today we'll be
14 presenting one or two or three police officers who will tell
15 you that they are -- that they applied to be a sergeant, that
16 they studied hard for the test, that they are experienced
17 police officers, and that they didn't get promoted, they didn't
18 do well on the test.
19 After that we're going to be presenting Dr. Barrett
20 as an expert witness, and he's going to tell you, I think, what
21 we thought he will tell you.
22 Tomorrow we will be presenting Professor Jenks in the
23 morning, followed by the sergeants. Some of the police
24 officers --
25 THE COURT: Well, except that, as I understand it, if
29
1 Professor -- or whatever his title is -- Dr. Barrett does not
2 testify tomorrow out of order in the defense case in chief --
3 MR. FLAXMAN: Oh. But --
4 THE COURT: -- then he's gone for --
5 MR. FLAXMAN: Right. But --
6 THE COURT: -- some period of time, is that right?
7 MR. FLAXMAN: -- I think -- he will be testifying out
8 of order. We don't have a --
9 THE COURT: Okay.
10 MR. FLAXMAN: I think that will be a -- and I'm not
11 sure what we will need to do after that.
12 The irreparable harm question, you're going to hear
13 some -- there will be some stipulated testimony from
14 Superintendent Rodriguez. The irreparable harm question is
15 going to be what we set out in the trial brief, that there's --
16 first there's a sliding scale for irreparable harm and
17 likelihood of prevailing on the merits, and, second, that the
18 only way to undo the harm of promoting people who we contend
19 should not be promoted would be to demote them, which would be
20 a drastic remedy, which the Seventh Circuit appears to say this
21 Court has the power to do.
22 THE COURT: So, in other words, those that would
23 be -- should the preliminary injunction not be issued that
24 would be appointed who would be, in effect, temporary
25 appointees until the Court makes a final decision?
30
1 MR. FLAXMAN: If the Court would agree that it has
2 that power and the City would not oppose that, that would
3 greatly eliminate, if not reduce -- that would reduce, if not
4 eliminate, the irreparable harm.
5 The City, I'm sure, will tell you, as Superintendent
6 Rodriguez has told you, that that would be not good for morale
7 in the Police Department.
8 But it's the -- I think it's what the Court would be
9 required to do if --
10 THE COURT: It would be roughly a year before you'd
11 get a final court resolution of this if all moved ahead
12 expeditiously?
13 MR. FLAXMAN: Well, what we optimistically --
14 THE COURT: So you'd have a one-year --
15 MR. FLAXMAN: Well, that's certainly possible.
16 But that would not be good for morale but it would be
17 a way to undo the irreparable harm of promoting people who
18 should not be promoted because the test was unfair.
19 Thank you.
20 THE COURT: All right, thank you very much.
21 Who wishes to speak on behalf of the City now?
22 MS. GLINK: Good morning, your Honor.
23 THE COURT: And, for the record, give your name for
24 the court reporter.
25 MS. GLINK: Shona Glink on behalf of the City
31
1 defendants.
2 Your Honor, plaintiffs bear a heavy burden before
3 this Court this morning. As a threshold matter, in order to
4 prevail on their motion for a preliminary injunction plaintiffs
5 must demonstrate that they will suffer irreparable harm if
6 their motion is denied and that they have a likelihood of
7 success on the merits.
8 Even if plaintiffs could meet this threshold burden,
9 which we contend that they cannot, they will be unable to show
10 that their interests outweigh the Chicago Police Department's
11 interests in meeting their severe operational needs in the
12 supervisory ranks of the Department and the Police Department's
13 interest in the safety and welfare of its citizens and
14 visitors.
15 It will be apparent to this Court at the close of the
16 evidence that this is a case where the balance of harms clearly
17 weighs in favor of a denial of plaintiffs' motion.
18 As we mentioned earlier this morning, Cox versus the
19 City of Chicago, a case that involved a claim about
20 promotions -- in that case the Seventh Circuit held as a matter
21 of law that a delay in promotion does not constitute
22 irreparable injury.
23 This ruling is based on the fact that a plaintiff
24 making such a claim has an adequate remedy at law because a
25 court is empowered to grant promotion, back pay, seniority, and
32
1 time and title.
2 Just last week, in Brown versus the City of Chicago,
3 a parallel case challenging promotions to the rank of
4 lieutenant, in a similar examination process Judge Gettleman
5 concluded that the plaintiffs in that case, because they had an
6 adequate remedy at law, failed to demonstrate that they would
7 suffer irreparable injury if the promotions were delayed.
8 Consequently, Judge Gettleman denied the motion for
9 preliminary injunction and noted that in doing so, in making a
10 determination that they had an adequate remedy at law, that
11 finding alone required a denial of plaintiff's motion.
12 Judge Bucklo and Judge Marshall in an earlier action
13 challenging a 1987 Chicago Police Lieutenant examination on
14 similar grounds that the examination was discriminatory,
15 concluded that the plaintiffs in that case would not suffer
16 irreparable harm either and in doing so denied their motion for
17 preliminary injunction on the papers without a hearing.
18 Both Judge Marshall and Judge Bucklo agreed that as a
19 matter of law that plaintiffs had an adequate remedy. For
20 these reasons, this Court too should deny plaintiffs' motion
21 for a preliminary injunction without a hearing on the grounds
22 that as a matter of law they cannot establish irreparable
23 injury.
24 THE COURT: If I could just ask -- and I don't
25 require that you answer it now, but it has to be dealt with, it
33
1 seems to me. We have a situation here, though, where all
2 plaintiffs, as I understand it, don't maintain that they are
3 entitled to be promoted at this time. But all plaintiffs are
4 taking the position, though, that the test is invalid and that
5 the test should be set aside and that either an alternate
6 method of selection should be used or, I take it, a correct
7 test be used.
8 How do we deal with that situation? It's not as
9 though you can promote the 290, or whatever the number of
10 plaintiffs at this point, as a adequate remedy at law, because
11 that's -- I don't think anybody maintains that that would be a
12 correct ultimate result in the case if the plaintiffs pre-
13 vailed.
14 So it seems to me that that analysis requires some
15 further explanation. And that's all I'm going to ask for
16 comment on at this point because this is just the opening
17 statements.
18 MS. GLINK: I have two quick responses just in order
19 to clarify our position.
20 One, we contend that that fact alone means that their
21 injuries are speculative at best, meaning that it's not even
22 clear if any of these individuals will ever be promoted
23 regardless of what alternative we adopt in the future in the
24 event that this Court finds that an alternative is available,
25 that's available to the City and would be equally valid.
34
1 So in that sense --
2 THE COURT: So are you saying, then, that this test
3 can't be challenged?
4 MS. GLINK: I'm saying that their injuries are
5 speculative in nature and, therefore, they can't show
6 irreparable injury at this stage. Not that the test can't be
7 challenged on the merits, but at the preliminary injunction
8 stage plaintiffs have to show more, more of a concrete injury
9 than the kind of speculative injury that they're alleging at
10 this point in order to get the kind of extraordinary relief
11 that they're seeking today.
12 And, although I'm sure we'll address this in more
13 detail, in all the cases that I've mentioned, especially in
14 Irwin, Judge Bucklo and Judge Marshall's case, and in the
15 earlier cases where examinations have been challenged, a
16 sufficient remedy has always been able to be crafted and which
17 have included in the past -- although we don't contend that
18 that is appropriate here -- quotas of minorities, et cetera.
19 THE COURT: I don't think that's pertinent or
20 permitted to use that at this stage.
21 MS. GLINK: No, your Honor.
22 But what I'm saying is that in the past we've always
23 been able to find a way to adequately remedy for any kind of
24 challenge or ultimate finding that an examination process was
25 invalid down the road.
35
1 So with those thoughts, you know, that's all I have
2 to say at this stage.
3 THE COURT: All right. You also, I take it, will be
4 introducing some evidence as to what problems this creates for
5 the police force should the appointments go forward but being
6 subject to further order of court, which could mean that they
7 might be undone at the conclusion of the case?
8 MS. GLINK: That's correct, your Honor. We will be.
9 THE COURT: So you'll be covering that as to what
10 effect that might have?
11 MR. GLINK: Yes.
12 THE COURT: All right.
13 MS. GLINK: Besides finding as a matter of law that
14 the plaintiffs have an adequate remedy, we contend that as a
15 matter of fact you're going to find that there's no irreparable
16 injury in this case.
17 First, it's undisputed that plaintiffs did not seek
18 to enjoin the first 114 rank order promotions from this
19 examination that occurred in August of 1994. This fact alone
20 supports a finding that plaintiffs were not and will not be
21 irreparably harmed if the plaintiffs go forward as planned.
22 Second --
23 THE COURT: Does that assume the waiver of right? If
24 they didn't challenge it at the start they lose their right to
25 challenge it at this time? Is that --
36
1 MS. GLINK: It goes to the emergency nature and
2 the -- the injury, not that they don't have a right to
3 challenge.
4 But the premise behind a preliminary injunction
5 motion is that they're going to be suffering irreparable injury
6 if these promotions go forward, yet 114 promotions were allowed
7 to go forward without challenge.
8 We think this fact alone supports a finding that
9 they're not irreparably injured, not that they don't have a
10 right ultimately to challenge the examination on the merits.
11 Again, we're at the preliminary injunction stage and
12 the burden is very high.
13 Second, if the plaintiffs are not promoted to the
14 rank of sergeant, if their preliminary injunction is granted,
15 there's no guaranty, as we've already spoken about, that
16 they're going to be promoted.
17 They're certainly not going to be promoted if this
18 Court were to grant the preliminary injunction. In fact, the
19 position stays the same. So in a sense they're not benefiting
20 at all from these promotions.
21 But, moreover, their injuries are speculative, as
22 we've already discussed, and speculative injuries alone are --
23 these types of speculative injuries cannot support a finding of
24 irreparable harm.
25 Third, because the City does not plan to give a new
37
1 Police Lieutenant's promotional examination in the near future
2 plaintiffs cannot demonstrate that they will lose any concrete
3 promotional opportunities if the promotion to the rank of
4 sergeant is delayed.
5 Moreover, the City has announced its intent to retire
6 the Sergeant eligibility list to issue in this case by the end
7 of the year and to create a new examination process for the
8 rank of sergeant. Thus, plaintiffs will have an opportunity in
9 the near future to compete once again for promotion.
10 Finally, it will be uncontested --
11 THE COURT: Is it determined that they have limited
12 themselves to a 301 --
13 MS. GLINK: There's been an announcement --
14 THE COURT: -- from this exam? Is that a permanent
15 decision? Or is that just a tentative view at this time?
16 MS. GLINK: That is a permanent decision that the
17 Mayor has announced, that the list will come down by the end of
18 the year.
19 We're convening a task force. The evidence will show
20 that there's a task force that's been convened or is in the
21 process of being convened to look at the testing process once
22 again, and they will --
23 THE COURT: But I'm talking about the number of
24 appointments from the present --
25 MS. GLINK: We will not be promoting any more than
38
1 the 301.
2 THE COURT: And that's a permanent decision then?
3 MS. GLINK: That is a permanent decision.
4 Finally, it will be uncontested that if plaintiffs
5 ultimately prevail on their Title 7 challenge and this Court
6 were to order their promotions that the Chicago Police
7 Department would promote these individuals without demoting any
8 previously promoted officers. In fact, the City of Chicago and
9 the Police Department has never demoted any previously promoted
10 officer as a result of a court-ordered remedy to a challenge of
11 one of their examinations.
12 It should also be noted that plaintiffs in Brown, who
13 are represented by the same attorney, didn't seek demotions,
14 and nor have they to date sought the demotion of any individual
15 who's been promoted to date from this eligibility list as a
16 remedy in this case. Thus, no one will suffer any harm if
17 these promotions are allowed to go forward.
18 For these reasons the plaintiffs as a matter of fact
19 cannot meet their burden of showing irreparable injury.
20 Plaintiffs are correct that if this were a trial on
21 the merits the City would bear the burden of demonstrating that
22 the examination was job-related under the standards set forth
23 by the Supreme Court in Gregs versus Duke Power and
24 incorporated in Section 105 of the Civil Rights Act of 1991.
25 But this is a preliminary injunction hearing.
39
1 Plaintiffs, plaintiffs bear the burden at the preliminary
2 injunction stage of demonstrating a likelihood of success on
3 the merits. Thus, the plaintiffs must present concrete
4 evidence under the standards set forth by the law and by the
5 Civil Rights Act of 1991 that the City will be unable to
6 demonstrate the 1993 Police Sergeant's examination was job-
7 related. Plaintiffs will be unable to meet this burden.
8 You will hear testimony from Dr. Gerald Barrett. Dr.
9 Barrett is a highly regarded test developer with a background
10 in industrial psychology and psychometrics. Dr. Barrett has
11 been developing promotional examinations for municipal police
12 and fire departments since 1973. He has published extensively
13 in his field of expertise in peer review journals and has been
14 recognized on numerous occasions as an expert in the field of
15 industrial psychology and test development.
16 Dr. Barrett will tell you that his company, Barrett &
17 Associates, was hired by the City of Chicago to develop the
18 1993 Police Sergeant's examination at issue in this case. He
19 will testify that that examination was developed utilizing a
20 content valid approach in accordance with the EEOC guidelines
21 on employee selection procedure and all relevant professional
22 standards in the field of industrial psychology.
23 He will further tell you that prior to developing the
24 Sergeant's examination he conducted an extensive job analysis
25 of the job of Chicago Police Sergeant, which included over 120
40
1 interviews with incumbent sergeants, lieutenants, and captains,
2 right along with sergeants, observations of the job, and an
3 extensive review of all departmental and operational source
4 materials, including the Chicago Police Department's general
5 orders, special orders, rules and regulations of the
6 Department, and the Criminal Code.
7 Through this extensive job analysis process Dr.
8 Barrett was able to identify the major work behaviors of a
9 Chicago Police sergeant and the knowledge, skills and abilities
10 necessary to successfully perform these major work behaviors.
11 Dr. Barrett will testify that he explicitly linked
12 each item on his three-test battery that he developed for the
13 Sergeant's examination to these major work behaviors to ensure
14 that the test items were job-related and that the examination
15 was tapping only those knowledge, skills and abilities
16 necessary to successfully perform as a sergeant.
17 Finally, Dr. Barrett will testify that in his
18 professional opinion based on over 30 years of test development
19 experience that the Sergeant's examination tested for a
20 significant portion of the job domain.
21 In addition, Dr. Barrett will testify that he
22 recommended that the results of the examination that was based
23 on a content valid strategy be used in a rank order and that
24 this recommendation was supported by sound professional
25 judgment, by professional standards in the field of industrial
41
1 psychology, and by the guidelines the evidence will further
2 demonstrate that these professional standards, the EEOC
3 guidelines, and the law in this circuit -- and I refer the
4 Judge to Gillespie versus the City of Chicago -- do not require
5 that an employer conduct the type of criterion-related
6 empirical study suggested by plaintiffs before utilizing the
7 results of an examination of rank order.
8 In light of this strong evidence that you will hear
9 at this hearing on the issue on the content validity and job
10 relatedness of this test, plaintiffs will be unable to meet the
11 threshold burden at the preliminary injunction stage of
12 demonstrating that the City will be unable to show that their
13 examination is valid.
14 If plaintiffs could demonstrate there was an equally
15 valid, less discriminatory alternative selection device
16 available to the City that the City refused to utilize they
17 would be able to prevail on their Title 7 claim. No such
18 alternative, however, has been presented to this Court to date.
19 Plaintiffs bear the burden under Title 7 and at this
20 hearing of demonstrating not only that the alternatives that
21 they recommend would be equally valid to the rank order used
22 for the 1993 Sergeant's examination but also that it would have
23 less adverse impact on minority groups.
24 Bare assertions alone are insufficient under the case
25 law to meet their burden. Plaintiffs must present concrete
42
1 evidence that their alternative is equally valid, and they will
2 be unable to do so.
3 Dr. Barrett, the only industrial psychologist who
4 will be testifying before this Court at this hearing, will tell
5 you that he analyzed the alternative selection device proposed
6 by plaintiffs and determined that this alternative is not as
7 valid from both a psychometric and content validity standpoint
8 as the 1993 Sergeant's examination.
9 Finally, even if plaintiffs could demonstrate
10 irreparable injury and some likelihood of success on the
11 merits, this Court must balance the interests of the plaintiffs
12 against the interests of the City, its citizens, and other
13 third parties.
14 If plaintiffs ultimately prevail, this Court is
15 empowered to grant them promotions and back pay and seniority.
16 No such relief is available to the City, which has an immediate
17 operational need to make these promotions.
18 The Police Department is currently short over 220
19 sergeants. Unless these promotions are allowed to go forward
20 the City will be unable to properly supervise its patrol
21 officers, including the 2,400 new police officers that have
22 been hired in the last two years.
23 The City also will be unable to implement its
24 community policing program. And, most importantly, it will be
25 unable to meet its operational needs in the months ahead,
43
1 including the need to properly supervise the spring and summer
2 festivals, parades and special events, including the Democratic
3 National Convention which is scheduled to be in Chicago this
4 August.
5 We ask your Honor to deny plaintiffs' motion for a
6 preliminary injunction and allow the sergeants' promotions to
7 go forward as planned.
8 THE COURT: Now, you will have evidence on this last
9 area --
10 MS. GLINK: Yes, we will, your Honor.
11 THE COURT: -- that you will present?
12 MS. GLINK: Some of the evidence will come in through
13 stipulated testimony of Superintendent Rodriguez, but we intend
14 to call some individuals from the Police Department as well to
15 testify in person about that harm.
16 THE COURT: All right. Thank you very much.
17 MS. GLINK: Thank you.
18 THE COURT: With that, we're going to take just a
19 short recess so that we can see where we are on court reporters
20 so we don't run into a problem.
21 And it would be my intent, unless it's going to
22 create a special problem, as I say, to go until 1:30 today,
23 with the understanding that that gives you time for lunch and
24 take a deep breath before you are on stage again.
25 So, with that, let's take a brief recess, and we'll
44
1 plan to resme within ten -- we'll seek to resume within ten
2 minutes.
3 (Recess)
4 THE COURT: All right, what we're going to do is to
5 go till noon, and then we'll just take a brief break and switch
6 over court reporters, and then we'll go to 1:30, if that's
7 satisfactory for everybody.
8 And with the completion, then, of the opening
9 statements, we'll call on Mr. Flaxman now as counsel for
10 plaintiffs to present the evidence on behalf of the plaintiffs.
11 MR. FLAXMAN: Thank you, your Honor. Our first
12 witness is Kenneth Webb.
13 KENNETH WEBB, PLAINTIFFS' WITNESS, SWORN
14 THE COURT: You may proceed when ready.
15 MR. FLAXMAN: Thank you, your Honor.
16 DIRECT EXAMINATION
17 BY MR. FLAXMAN:
18 Q. Could you state your name and spell your last name for us.
19 A. Kenneth M. Webb, Sr. W-e-b-b.
20 Q. And what is your business or occupation?
21 A. I am a Chicago Police Officer currently assigned to the
22 15th District Commander's office.
23 Q. Now, for how long have you been a Chicago Police Officer?
24 A. Accurately, 29 years and 1 month.
25 Q. Are you African-American?
45
1 A. Yes, sir, I am.
2 Q. Did you apply to be promoted to Sergeant on the most recent
3 Sergeants' test?
4 A. Yes, I did.
5 Q. Now, how old are you?
6 A. I'm 50 years old.
7 Q. Okay. Could you tell the Court whether or not you studied
8 for the Sergeants' test.
9 A. I studied more for this exam than I had for previous exams
10 because I really wanted to -- I knew that this would be --
11 probably be my last chance of being promoted because of my age
12 and my tenure on the job.
13 So I -- I did study quite a quit. I put in four to
14 five, maybe six hours a day for over three, four or five
15 months.
16 Q. Now, when you say you studied, was there a reading list of
17 the material to study?
18 A. Yes, there was.
19 Q. And what kind of material was on the reading list?
20 A. General orders, special orders, Department notices, Chapter
21 38 at that time -- it's 720 now -- City ordinances, and other
22 Department directives.
23 Q. And did you study those materials?
24 A. Yes, I did.
25 Q. Did you do anything else to prepare for the test besides
46
1 studying those written materials?
2 A. I had gone to a couple of seminars on in-basket exams and
3 practiced the oral interview with the National Organization of
4 Black Law Enforcement Executives.
5 Q. Now, you said an in-basket exam. What was the in-basket
6 exam?
7 A. That was a portion of the exam where they were given --
8 candidates were given numerous papers -- I believe it was a
9 copy of a incident reporting guide -- and specific incidents
10 where they would ask you certain questions about the certain
11 boxes on the reports.
12 Q. And were there then multiple choice questions after you
13 read that material?
14 A. Yes, there was.
15 Q. Okay. Were you told in advance about what the in-basket
16 would be like?
17 A. No, we weren't.
18 Q. Had you ever done that kind of an in-basket before?
19 A. No, I hadn't.
20 Q. Is that part of the work that you've done as a Chicago
21 Police Officer?
22 A. No, it wasn't.
23 Q. What kind of work do you do you now as a Chicago Police
24 Officer?
25 A. I basically assist the district commander.
47
1 Q. Now, police officer is the lowest level warrant officer in
2 the Police Department, is that right?
3 A. Well, it's the entry level position.
4 Q. Okay, the entry level. And above police officer is there
5 the rank of sergeant?
6 A. That is correct.
7 Q. And is it correct that sergeants supervise police officers?
8 A. Yes, they do.
9 Q. And sergeants are supervised by lieutenants, is that right?
10 A. That's correct.
11 Q. Now, in addition to police officers, are there also
12 something called the D-2 rank?
13 A. Yes, there is.
14 Q. What is the D-2 rank?
15 A. That is a detective, a patrol specialist, a youth officer.
16 And I can't think of any other position.
17 Q. Now, is that the same career service rank as a police
18 officer?
19 A. That's not a career service rank. That's an exemplary.
20 And a police is a career service rank, but a person could be
21 appointed to a D-2 position.
22 Q. And can you also take a test for a D-2 position?
23 A. Yes, you do.
24 Q. Now, are you familiar with the work that police sergeants
25 do?
48
1 A. Yes, I am.
2 Q. Have you ever seen a police sergeant do the kind of work
3 that you had to do on that in-basket?
4 A. Not to that degree.
5 Q. How did you do on the Police Sergeant -- most recent Police
6 Sergeant's test?
7 A. If I recall correctly, I scored 117 on the written
8 apparatus, 49 on the in-basket, and I believe an 11 on the oral
9 interview.
10 Q. Now, that's 11 out of 15 on the oral?
11 A. That's correct.
12 Q. And that's 49 -- is that 49 out of 60?
13 A. Yes, sir.
14 Q. And 117 is 117 out of 150?
15 A. That's correct.
16 Q. Did that rank you high enough to be among the 400 or so
17 that are going to be promoted?
18 A. No, it did not.
19 Q. How far have you gotten in school?
20 A. I'm three -- after this semester I'll be three hours away
21 from a master's in public administration.
22 Q. And before working on your master's did you get a
23 bachelor's degree?
24 A. Yes, I did.
25 Q. And when did you get your bachelor's degree?
49
1 A. I graduated from Chicago State University in June of 1989.
2 MR. FLAXMAN: If I could just have a minute.
3 THE COURT: Yes.
4 BY MR. FLAXMAN:
5 Q. Could you explain that answer before about this was your
6 last chance to become a Sergeant.
7 A. Well, if you know, the -- based on the history of the City,
8 they don't give promotional exams too often. And, after having
9 passed the last three promotional exams and they -- they all
10 usually have a cutoff number. And, not being promoted, I -- I
11 feel that before I retire there wouldn't be another opportunity
12 to be promoted, there wouldn't be another exam.
13 Q. Is there a particular number of years on the job that you
14 have to serve to maximize your retirement benefits?
15 A. I believe 32 years max you out at 74 percent.
16 Q. So if you worked 35 years your pension isn't any bigger
17 than if you worked 32 years?
18 A. Right. You actually work for less money.
19 Q. Why is that?
20 A. Well, when you add it up you -- you make something like $20
21 an hour now, and if you were to go over your pension, over the
22 time that you maxed out it comes out to a less amount of money
23 per hour.
24 Q. And how many more years until you have that 32 years?
25 A. In a year and a half, in about 31 years and one day give me
50
1 a 32-year pension.
2 Q. So --
3 A. So another year and a half year. A year and a half or two
4 years or so.
5 Q. And are you old enough to retire?
6 A. Yes, I am.
7 Q. And when you retire from the Chicago Police Department and
8 you become eligible for a pension can you receive that pension
9 and work at another full-time job?
10 A. Yes, you can.
11 MR. FLAXMAN: I have nothing further.
12 THE COURT: All right. Any cross examination now?
13 MR. KERTEZ: Yes, your Honor.
14 CROSS EXAMINATION
15 BY MR. KERTEZ:
16 Q. Good morning, Officer Webb.
17 A. How are you doing?
18 Q. Good. You've been a police officer during your entire
19 career with the Chicago Police Department, isn't that right?
20 A. That's correct.
21 Q. And you've never performed as a sergeant in the field, have
22 you?
23 A. I've never been paid for performing as a sergeant in the
24 field but there have been times during my tenure as a police
25 officer where I've performed a supervisor's duties, yes.
51
1 Q. But never as a sergeant in the field --
2 A. No.
3 Q. -- is that correct?
4 You don't have a background in industrial psychology,
5 do you?
6 A. No, I do not.
7 Q. And you've never developed any police promotional tests,
8 have you?
9 A. No, I have not.
10 Q. And have you ever developed any promotional tests at all?
11 A. No, I have not.
12 Q. You took the 1985 and 1988 Police Sergeant examination,
13 didn't you?
14 A. That's correct.
15 Q. And you weren't promoted based on the results of that
16 particular examination, were you?
17 A. No, I was not.
18 Q. Officer Webb, sergeants are the immediate supervisors of
19 police officers, isn't that right? That's what you said?
20 A. That's correct.
21 Q. And if a police officer has a question about an order or
22 about the law or about police procedures, wouldn't that officer
23 generally go to his supervising sergeant?
24 A. Usually, yes.
25 Q. And you said that prior to the administration of the 1993
52
1 Sergeant's examination that you were informed about the general
2 orders, the special orders, and the statutes that would be
3 covered on that test, isn't that right?
4 A. That's correct.
5 Q. And general orders generally apply to the entire depart-
6 ment, don't they?
7 A. Yes, they do.
8 Q. And the special orders also generally apply to the entire
9 department, isn't that right?
10 A. That's correct.
11 Q. And when you received that reading list for the examination
12 you didn't register any complaints at that point in time, did
13 you?
14 A. For the reading list?
15 Q. Yes.
16 A. No.
17 Q. And, Officer Webb, did you see the announcement of the 1993
18 examination which explained what the test components would be
19 and how those components would be scored and weighted?
20 A. Yes, I did.
21 Q. At the time that you saw that particular promotion
22 announcement did you register any complaints?
23 A. No, I did not.
24 Q. And during the time that you took the 1993 Sergeant's
25 examination, you didn't register any complaints at the test at
53
1 that point, did you?
2 A. I registered complaints at the conclusion of the exam.
3 Q. But not during the?
4 A. Well, you couldn't. You could only call Arthur Andersen at
5 the conclusion of the exam if you had a complaint. You
6 couldn't register any complaints at that time.
7 Q. Did anybody from the Police Department ever tell you that
8 you could not register complaints during the time of the
9 examination?
10 A. I couldn't name anyone specifically. But we were told that
11 if we had complaints we were to call Arthur Andersen.
12 Q. But no one told you, am I right, that you could not make
13 complaints during the course of the examination?
14 A. I wouldn't be -- I'm not sure.
15 Q. How many complaints did you register about the examination?
16 A. Several.
17 I called the hot line and I complained about the
18 ambiguous questions on the exam. And I called and complained
19 about the inadequate area that we had to lay all of these
20 papers, these reports of the in-basket in in this crowded room.
21 I complained several times.
22 Q. And you complained to Arthur Andersen?
23 A. Yes, I did.
24 Q. Do you know what the results of those complaints were?
25 A. I believe they told me on both occasions that they would
54
1 look into the matter. And I think that there -- there was one
2 return call where one question was thrown out and they called
3 back and said that that one particular question was thrown out.
4 I can't remember exactly what question that was.
5 Q. And at that point, since you knew that you had an available
6 avenue to make complaints, you registered all the complaints
7 that you had at that point, isn't that right?
8 A. That's correct.
9 Q. At the time you filed your lawsuit regarding this examina-
10 tion, the current one that we're here for today, the Adams
11 suit, you knew your score at that point, didn't you?
12 A. Yes, I did.
13 Q. And your score wasn't high enough, was it, for you to be
14 promoted based on the results of this examination?
15 A. No, it was not.
16 Q. That 1993 Sergeant's examination wasn't an easy test, was
17 it, Officer Webb?
18 A. That's a pretty hard question. Like, you know, I thought
19 the test had a great amount of ambiguity. So if that, in turn,
20 makes it not easy, I would say it was more confusing than --
21 than hard.
22 Q. Officer Webb, promotions based on the results of the 1993
23 examination were made in August of '94, weren't they?
24 A. Yes, sir.
25 Q. You didn't file a motion for preliminary injunction at that
55
1 time trying to stop those particular promotions, did you?
2 A. No, I did not.
3 Q. Do you know when the City is going to give its next
4 promotional examination for police sergeant?
5 A. No, I do not.
6 Q. Did anybody from the Police Department ever tell you that
7 it would be a number of years, several years, four or five
8 years down the road before another Police Sergeant examination
9 would be given?
10 A. No. No, they haven't.
11 Q. And if the Chicago Police Department gave a promotional
12 examination in 1997 or 1998 for Police Sergeant would you take
13 that examination, Officer Webb?
14 A. If I'm still here, yeah.
15 Q. And wasn't it your testimony that you plan to be around at
16 least a couple more years, or around a couple? Isn't that
17 right?
18 A. Well, you never know. You know, I'm at the point where I
19 could retire and I'm at the point where I could stay. I don't
20 have to go, I can -- either way. So I don't know. I may be
21 around, I may not be around.
22 Q. And if you, let's say, did retire within the next two
23 years --
24 A. Uh-huh.
25 Q. -- that would be a voluntary retirement?
56
1 A. That's correct.
2 MR. KERTEZ: I have no further questions at this
3 time.
4 THE COURT: All right. Redirect?
5 REDIRECT EXAMINATION
6 BY MR. FLAXMAN:
7 Q. When were the times when you performed supervisory duties?
8 A. Back in 198- -- well, let's put it like this. During my
9 tenure as a police officer from time to time working the vice
10 control division and the internal affairs division there were
11 times when I had to perform the duties of a supervisor, be that
12 administering rights of, charges of, notification of allega-
13 tions, things that supervisors do to -- to officers. And on
14 surveillances in the vice control division it would be at the
15 point where I would -- you to have to take charge of a
16 situation, especially when you have two or three guys on the
17 street.
18 Q. Now, you told us that you registered complaints at the
19 conclusion of the exam about -- something about the not enough
20 room?
21 A. That is correct.
22 Q. What was that complaint about?
23 A. During the in-basket portion of the exam we must have had
24 at least 35 -- anywhere from 20 to 30 documents in your hands
25 and within a room with 30 -- 25 or 30 people -- I'm not sure of
57
1 the exact number -- and there was nowhere to place the
2 documents once you sorted them out, you got your papers mixed
3 up with some of the other people. And the further back you
4 were in the room the worse -- the less area you had to work in.
5 Q. Is that the kind of -- have you ever seen Chicago Police
6 Sergeants work with 30 pieces of paper and 30 people in a room,
7 each with 30 pieces of paper trying to sort them?
8 A. No, I haven't.
9 MR. FLAXMAN: Thank you. Nothing further.
10 MR. KERTEZ: Nothing further, your Honor.
11 THE COURT: All right. Sir, that concludes your
12 testimony, then, and you're excused.
13 THE WITNESS: Thank you.
14 (Witness excused)
15 THE COURT: You can call the next.
16 ANDREW JONES, JR., PLAINTIFFS' WITNESS, SWORN
17 THE COURT: You may proceed.
18 DIRECT EXAMINATION
19 BY MR. FLAXMAN:
20 Q. Could you state your name and spell your last name for us.
21 A. Andrew Jones, Jr. J-o-n-e-s.
22 Q. And what's your business or occupation?
23 A. I'm a Chicago Police Officer Detective.
24 Q. For how long have you been a Chicago Police Officer?
25 A. About 19 years, 5 months.
58
1 Q. And how old are you?
2 A. I'm 47.
3 Q. What's your present assignment?
4 A. I'm assigned to Area 2 Violent Crimes.
5 Q. In what capacity are you assigned to Area 2 Violent Crimes?
6 A. As a Detective.
7 Q. Now, for how long have you been a Detective?
8 A. 9 years.
9 Q. Did you apply to be promoted to sergeant on the most recent
10 Sergeant's test?
11 A. Yes, sir.
12 Q. And did you study for the written test?
13 A. Yes, I did.
14 Q. What did you do to study?
15 A. Reviewed all the information that was given out to us,
16 handed out to us as the study material, general orders, special
17 orders, the criminal law, state and city, and special orders.
18 Also, I went to a study session, a seminar con-
19 cerning the exam itself. And that lasted a good almost three
20 months.
21 Q. How did you do on the test?
22 A. Not that well.
23 Q. Did you do well enough to be promoted?
24 A. No, I didn't.
25 Q. Now, you're African-American, is that right?
59
1 A. That's correct.
2 Q. In your work as a detective what do you do?
3 A. My primary responsibility is to go out and to investigate
4 the cases or the instances that occur in the city in violent
5 crimes.
6 Q. Is there a particular area of the city in which you work?
7 A. Yeah. I'm confined to the far south side of the city. It
8 roughly borders 75th Street to the north, the lake to the east,
9 the suburbs to the west, and the city limits to the south.
10 Q. Is that area predominantly African-American?
11 A. Yes, it is.
12 Q. Are there also white detectives who work in that area?
13 A. Yes, sir.
14 Q. Is there anything that you feel you bring special to the
15 job working in the black area in violent crimes as a detective
16 because you're African-American?
17 A. Oh, sure. Culturally I'm -- I'm Afro-American, and I could
18 relate and understand what's going on within the the community.
19 And they also can relate back to me.
20 Q. And in your work you're dealing with victims of crime in
21 addition to perpetrators?
22 A. That's correct.
23 Q. Now, to get promoted to Detective did you take a test?
24 A. I had taken a test, yes, I did.
25 Q. And did you get promoted as the result of your score on
60
1 that test?
2 A. No, I didn't.
3 Q. How did you get promoted to Detective?
4 A. I was promoted meritoriously.
5 Q. And by "meritoriously" what does that mean?
6 A. I was promoted for the fact that of my outstanding work I
7 have done in the field as a patrolman and as a tactical officer
8 into the position of Detective.
9 Q. Now, since being promoted nine years ago to a Detective
10 meritoriously have you received any commendations?
11 A. Yes, sir, I have. As a Detective I would venture about 20
12 department -- well, 10 department -- well, I'd say 8 Department
13 commendations and about 20 honorable mentions
14 Q. Now, could you tell the Court what a Department commenda-
15 tion is.
16 A. It's given to a -- a police officer who have done
17 outstanding work in catching a perpetrator or solving a
18 particular case.
19 Q. Now, is your performance rated every year or twice a year
20 by your superior?
21 A. Yeah, twice a year.
22 Q. And is your superior a sergeant?
23 A. Yes, sir.
24 Q. What kind of performance rating have you received in the
25 last years?
61
1 A. I generally average around 96, 97.
2 Q. Now, when you took the written test for promotion to
3 detective did you not do very well?
4 A. No, I didn't. I wasn't in the realm of being promoted from
5 the exam.
6 Q. Okay. And is it fair to say that you've had trouble doing
7 well on paper and pencil tests?
8 A. Tests, yes, sir.
9 Q. Okay. And is it also fair to say that you haven't had
10 trouble working as a detective?
11 A. No, I haven't.
12 MR. FLAXMAN: Thank you. Nothing further.
13 THE COURT: All right. Cross examination?
14 CROSS EXAMINATION
15 BY MR. KERTEZ:
16 Q. Dr. Jones, you've been a police officer during the entire
17 time that you've been with the Chicago Police Department either
18 in what we know as a D-1 or a D-2 position, is that correct?
19 A. That's correct.
20 Q. And you've never performed as a sergeant in the field, have
21 you?
22 A. Not as a Sergeant. But I do take charge of a scene when I
23 arrive on the scene.
24 Q. But it's not as a sergeant, is that correct?
25 A. No.
62
1 Q. And you don't have a background in industrial psychology,
2 do you?
3 A. No, I don't.
4 Q. And have you ever developed any promotional tests for a
5 police department?
6 A. No, sir.
7 Q. Have you ever developed any promotional tests at all?
8 A. No, sir.
9 Q. And, again, we know that sergeants are the immediate
10 supervisors of police officers, aren't they?
11 A. That's correct.
12 Q. And if a police officer has a question regarding the law or
13 an order or a procedure or policy of the Department it would be
14 to a sergeant that that officer would generally go, is that
15 correct?
16 A. Not necessarily.
17 Q. Who would that person go to as a front line supervisor,
18 then, if --
19 A. Okay. It's from my supervisor. Generally patrolmen a lot
20 of times will call my office or ask me on the scene.
21 I would also have sergeants ask me the same
22 questions, what to do in this situation.
23 Q. But in general it is to your first line supervisor a police
24 officer would go, is that right?
25 A. That's correct.
63
1 Q. And prior to the administration of the 1993 Sergeant's test
2 you were informed about what general orders, what special
3 orders, and what statutes would be tested, weren't you?
4 A. Yes, sir.
5 Q. And those general orders apply departmentwide, don't they?
6 A. Yes, sir.
7 Q. And those special orders apply departmentwide throughout
8 the city, is that correct?
9 A. That's correct.
10 Q. When you received that information regarding what would be
11 on the test through the reading list, I believe, you didn't
12 register any complaints at that juncture, did you?
13 A. No, sir.
14 Q. And did you see the announcement for the 1993 Police
15 Sergeant examination prior to the time you took the test?
16 A. The announcement?
17 Q. Yes.
18 A. Yes, sir.
19 Q. And that announcement explained what would be the
20 components and how the test would be weighted and scored,
21 didn't it?
22 A. Yes, it did.
23 Q. And at that point when you saw that announcement for the
24 sergeant promotion you didn't register any complaints at that
25 time, did you?
64
1 A. No, sir.
2 Q. During the time you took the 1993 Police Sergeant's
3 examination you didn't register any complaints, did you?
4 A. No, sir.
5 Q. Now, you received your score sometime in May of '94, would
6 that be about right?
7 A. That's about correct.
8 Q. And from the time that you had completed the 1993
9 examination until the time that you'd received your score did
10 you lodge any complaints regarding the examination?
11 A. No, sir.
12 Q. Are you a plaintiff in this Adams lawsuit?
13 A. Yes, sir, I am.
14 Q. When did you become a plaintiff in this suit?
15 A. Last week.
16 Q. Prior to that time, however, you were not, is that correct?
17 A. That is correct.
18 Q. And when the motion for preliminary injunction was filed
19 some weeks ago you were not a plaintiff, is that correct?
20 A. I wasn't aware of it at the time. No, sir.
21 Q. The 1993 Police Sergeant examination wasn't an easy test,
22 was it?
23 A. It -- no, it wasn't an easy exam.
24 Q. And there were promotions based on the results of that 1993
25 Sergeant's test that were made in August of 1994, isn't that
65
1 right?
2 A. That's correct.
3 Q. And you didn't file a motion for a preliminary injunction
4 trying to stop the promotions at that time, did you?
5 A. No, sir.
6 MR. KERTEZ: I have no further questions at this
7 time.
8 THE COURT: All right. Any redirect?
9 MR. FLAXMAN: No redirect, your Honor.
10 THE COURT: All right. Sir, that concludes your
11 testimony and you're excused.
12 THE WITNESS: Thank you, sir.
13 (Witness excused)
14 MR. FLAXMAN: Our next witness, your Honor, is
15 Jacqueline Kimber.
16 JACQUELINE KIMBER, PLAINTIFFS' WITNESS, SWORN
17 DIRECT EXAMINATION
18 BY MR. FLAXMAN:
19 Q. Could you state your name and spell your last name for us.
20 A. Jacqueline Kimber. K-i-m-b-e-r.
21 Q. And what's your business or occupation?
22 A. I'm a Chicago Police Officer.
23 Q. For how long have you been employed by the Chicago Police
24 Department?
25 A. As a police officer I've been employed by the Department --
66
1 I've got to think.
2 23 years.
3 Q. And before working as a police officer for the Department
4 were you previously -- had you been employed by the Department?
5 A. Right. I had been employed by the Department for three
6 years prior to becoming a police officer and for two years
7 working for Mayor Richard J. Daley.
8 Q. When you first started working for the Police Department
9 what was your position?
10 A. I was a senior stenographer.
11 Q. Then you became a police officer?
12 A. Yes.
13 Q. Presently, what's your present assignment?
14 A. I work in News Affairs for the Chicago Police Department.
15 Q. And how long have you worked in News Affairs?
16 A. 11 years.
17 Q. Before working for News Affairs did you work on the street?
18 A. Yes, I did.
19 Q. For how long did you work on the street?
20 A. 12 years.
21 Q. And what kind of work did you do when you worked on the
22 street?
23 A. I was a female police officer assigned to the youth
24 division. At that time we did ride around in a blue and white
25 car, and we wore skirts then.
67
1 Then I became a youth officer, which was a D-2
2 position.
3 Q. Now, as a youth officer did you deal with people in the --
4 with citizens in the community?
5 A. All the time.
6 Q. And you're African-American, is that right?
7 A. Yes.
8 Q. Did you feel that you brought anything different to the job
9 than a white youth officer did when you were responding to
10 calls?
11 A. Oh, I most certainly did because the area that I worked in
12 was predominantly African-American. As a youth officer you
13 have an opportunity to not only decide what's going to happen
14 to a juvenile that's brought before you but you do a lot of
15 counseling to their family. And I've found that over the years
16 a lot of African-American families were not really aware of
17 what their rights were or how to handle involvement with the
18 police officers. They weren't being informed.
19 Q. Did you feel that they could understand this better because
20 you were African-American?
21 A. Yes, I did.
22 Q. Now, you applied to be -- well, when is the first time you
23 applied for promotion to sergeant?
24 A. The 1978 exam.
25 Q. Okay. And you didn't get promoted on that exam?
68
1 A. No.
2 Q. And then you applied again in 198- --
3 A. '85.
4 Q. And you didn't get promoted from that one?
5 A. No.
6 Q. And then you applied again in 1993?
7 A. Yes.
8 Q. And are you going to be among the 400 or so promoted from
9 that test?
10 A. No, I'm not.
11 Q. Are you going to be around to take the next Sergeant's
12 test?
13 A. I probably won't.
14 Q. Okay. And why is that?
15 A. Because I hopefully plan to retire sometime next year.
16 MR. FLAXMAN: Okay, thank you. Nothing further.
17 THE COURT: All right. Any cross examination?
18 MR. KERTEZ: Yes, your Honor.
19 CROSS EXAMINATION
20 BY MR. KERTEZ:
21 Q. Officer Kimber, during the entire time that you've been a
22 sworn officer with the Department you've either been in a D-1
23 police position or a D-2 position, isn't that right?
24 A. That's correct.
25 Q. And you've never performed as a sergeant in the field, have
69
1 you?
2 A. Not performed as a sergeant. But made decisions that
3 sergeants sometimes make, yes.
4 Q. But never performed as a sergeant, correct?
5 A. No.
6 Q. You don't have any experience in test development, right?
7 A. No, I don't.
8 MR. FLAXMAN: Judge, we'll stipulate that all of my
9 clients are without experience in test development or test
10 validation and that none of them are industrial psychologists.
11 THE COURT: All right.
12 MR. KERTEZ: All right.
13 BY MR. KERTEZ:
14 Q. And before you took the 1993 examination, you told us that
15 you took two previous Sergeant examinations, isn't that right?
16 A. That's correct.
17 Q. And that you were not promoted to Sergeant off of either of
18 those previous examinations, is that right?
19 A. That's correct.
20 Q. Now, again, the sergeant position is the immediate
21 supervisor of a police officer, right?
22 A. That's correct.
23 Q. And if a police officer has a question about the law or
24 procedure or policy, then that officer would generally go to
25 his or her supervising sergeant, isn't that right?
70
1 A. In some cases. In other cases the officer looks up the
2 order himself.
3 Q. But if that were not sufficient and there was still a
4 question remaining, then --
5 A. They would yield to the sergeant, right.
6 Q. Prior to the administration of the 1993 Sergeant
7 examination you were informed as to what general orders,
8 special orders, and statutes would be covered on that test,
9 isn't that right?
10 A. That's correct.
11 Q. And the general orders of the Police Department apply
12 citywide, don't they?
13 A. Yes.
14 Q. And the special orders of the Chicago Police Department
15 also apply citywide?
16 A. Yes.
17 Q. At the time that you saw the reading list that indicated
18 what orders and what statutes would be covered on the
19 examination you didn't register any complaints, did you?
20 A. There was no need. They were all Department orders, things
21 that we have to know.
22 Q. Did you see the announcement for the 1993 Police Sergeant's
23 examination prior to the time you took the test?
24 A. Yes, I did.
25 Q. And that announcement contained the components that would
71
1 be on the test, as well as how it would be weighted and scored,
2 isn't that correct?
3 A. No, I don't -- I don't -- you know, the thing that I happen
4 to remember, we received two communications. Now, with the
5 announcement itself I don't remember if the announcement stated
6 what the weights would be.
7 I do know that we were informed of that after we took
8 the exam.
9 I could be wrong. But we had gotten a couple of
10 communications from the City.
11 Q. So you don't recall at this point what that announcement --
12 A. I remember the announcement told us what the -- what the
13 exam would consist of, the three components.
14 Q. Now, when you got that announcement that you say you recall
15 explained what the three components of the examination would
16 be --
17 A. Right.
18 Q. -- did you register any complaints?
19 A. There was no need to.
20 Q. Now, you received your score in about about May of 1994, is
21 that right?
22 A. Yes.
23 Q. From the time that you completed taking the 1993
24 examination up until the time you received your score you
25 didn't register any complaints about the examination, did you?
72
1 A. With Arthur Andersen?
2 We were told that if we had any complaints we
3 could -- there was a number we would call --
4 Q. And did you call that number?
5 A. -- with Arthur Andersen.
6 And yes, I did call the number.
7 Q. And what did you tell Arthur Andersen?
8 A. Well, I never got through because I always got a recording.
9 Q. Did you ever write Arthur Andersen?
10 A. No, I didn't.
11 Q. At the time that you filed this lawsuit based on the 1993
12 examination you knew your score, isn't that right?
13 A. Yes.
14 Q. And that score wasn't high enough to allow you to be
15 promoted based on the results of that test, was it?
16 A. That's correct.
17 Q. The 1993 Police Sergeant examination wasn't an easy test,
18 was it?
19 A. It was not easy. But it was also confusing.
20 Q. Now, promotions were based -- based on the 1993 examination
21 were made in August of '94 or thereabouts, isn't that right?
22 A. That's correct.
23 Q. And at that time you didn't file a preliminary injunction
24 motion seeking to stop those promotions, did you?
25 A. No, I didn't.
73
1 Might I ask you a question?
2 MR. KERTEZ: I believe the way it works is I direct
3 you.
4 THE COURT: You can talk to your counsel later on in
5 the proceeding.
6 BY MR. KERTEZ:
7 Q. Did anybody from the City of Chicago ever tell you when the
8 Chicago Police Department intended to give its next sergeant
9 promotional examination?
10 A. After this one?
11 Q. Yes.
12 A. No.
13 Q. If that test -- another Sergeant examination were to be
14 given in 1997 would you take that examination?
15 A. It depends on when it's given. I don't intend to be here
16 throughout '97.
17 Q. But if it were given during the time when you are here
18 during 1997 you would -- would you take that test?
19 A. No, I woudn't.
20 Q. Why not?
21 A. Because I plan to retire in '97.
22 Q. So if the test is given while you're still here you would
23 not take it?
24 A. No.
25 MR. KERTEZ: I have no further questions.
74
1 THE COURT: All right. Redirect?
2 And if you wish to speak in confidence to your
3 witness you may.
4 MR. FLAXMAN: Well, if you'll extend an invitation --
5 THE COURT: Yes, you may.
6 (Discussion off the record)
7 MR. FLAXMAN: No redirect. Thank you.
8 THE COURT: All right. Thank you very much. You're
9 excused.
10 (Witness excused)
11 THE COURT: Let's call the next.
12 THOMAS A. ANDERSON, JR., PLAINTIFFS' WITNESS, SWORN
13 BY MR. FLAXMAN:
14 Q. Could you state your name for the court reporter, please.
15 A. My name is Officer Thomas A. Anderson, Jr.
16 Q. And you're an African-American Chicago Police Officer?
17 A. Yes, I am.
18 Q. For how long have you been a Chicago Police Officer?
19 A. Just a little over 26 years.
20 Q. And how old are you?
21 A. I am 50 years old.
22 Q. What's your present assignment?
23 A. I'm presently assigned to Unit 284, which is a school
24 patrol unit.
25 Q. Did you take the 1993 Sergeant's test?
75
1 A. Yes, I did.
2 Q. Why did you take it?
3 A. I wanted to be promoted to the rank of sergeant.
4 Q. Had you taken any Sergeant's promotional tests before that?
5 A. I took the previous two Sergeant's promotional exams.
6 Q. Did you score high enough on the 1993 test to be among the
7 400 or so who are going to be promoted?
8 A. No, I did not.
9 Q. Now, are you going to be around in 1997 if there's another
10 test?
11 Let me -- are you going to be working as a Chicago
12 Police Officer in 1997 if there's another -- and take another
13 Sergeant's test if there's another one done?
14 A. The way I feel right now at this moment, no.
15 Q. Okay. So is it fair to say that this 1993 test was your
16 last chance to get promoted?
17 A. I think this was my last window of opportunity.
18 Q. Did you study for it?
19 A. I studied extensively.
20 Q. Could you tell the Court what you did to study for it.
21 A. I used all -- all free time. I went to various study
22 groups; mainly a study group given by Commander James Wiggams.
23 I also made a synopsis, a syllabus on my computer of
24 all the general orders that were listed in the study group, and
25 I used that as a study guide.
76
1 Q. Did you study all those general orders?
2 A. Yes, I did.
3 Q. How many hours a day did you study?
4 A. On my days off I had studied extensively on all the free
5 time I had at that time.
6 Q. And for how -- over how long a period of time did you do
7 this?
8 A. Months.
9 Q. And do you remember how you did on the test?
10 A. No.
11 Well, I just remember the last portion I was given.
12 I think it was a 12 out of 15 rating.
13 MR. FLAXMAN: Could I have just one minute?
14 THE COURT: Yes.
15 BY MR. FLAXMAN:
16 Q. From your experience as a police officer have you observed
17 what sergeants do?
18 A. Yes, I have.
19 Q. On the test you took for a promotion in 1993 there was a
20 portion called the in-basket with 30 pieces of paper, is that
21 right?
22 A. Yes, I remember that.
23 Q. Have you ever seen sergeants do any work that's like what
24 you did on that in-basket test?
25 MR. KERTEZ: I'd like to object, your Honor. I don't
77
1 think that there's any foundation to show that Officer Anderson
2 has been a sergeant or is qualified to testify as to what a
3 sergeant does.
4 And, in fact, Mr. Flaxman will be offering subject
5 matter experts tomorrow, I believe, who will be able to talk to
6 that.
7 But this particular witness has not performed as a
8 sergeant and would not be qualified to answer that question.
9 THE COURT: I'll sustain the objection.
10 You may proceed.
11 MR. FLAXMAN: I have nothing further.
12 THE COURT: Thank you. Any cross examination?
13 MR. KERTEZ: Yes, your Honor.
14 CROSS EXAMINATION
15 BY MR. KERTEZ:
16 Q. Officer Anderson, you've been a Chicago Police Officer
17 during the entire time that you've been a sworn member of the
18 Police Department, isn't that right?
19 A. Yes.
20 Q. And you told us that you took the 1985 and 1978 Sergeant's
21 examination, isn't that right?
22 A. Yes.
23 Q. And that in fact you were not promoted based upon the
24 results of the either of those examinations, isn't that right?
25 A. Yes.
78
1 Q. Sergeants are the immediate supervisors of police officers,
2 isn't that correct?
3 A. Yes.
4 MR. FLAXMAN: Judge, this is repetitious. We all
5 know what the answers are to these questions. We'll even
6 stipulate to the --
7 THE COURT: Well, that's true on both sides.
8 If we can work out a stipulation to cut back on the
9 amount of questions, obviously, that would expedite the hear-
10 ing.
11 Do you wish to stipulate that with all witnesses or
12 with just this witness or --
13 MR. FLAXMAN: We'll stipulate that he'll answer these
14 cross examination questions the same way the other three
15 witnesses have answered them, that he did not seek a
16 preliminary injunction in the December 1994 and whatever -- all
17 the other stock questions which we all -- I don't know if that
18 will aid you in ruling on this to give the same answer.
19 THE COURT: Well, in order to bar them from asking
20 questions we have to be sure we've got a stipulation that
21 covers it. Otherwise, they have the right to ask the question.
22 So if you wish to articulate a stipulation --
23 MR. FLAXMAN: I think it would be quicker to let him
24 ask the questions.
25 THE COURT: Well, I don't know how many more
79
1 witnesses we have, so --
2 MR. FLAXMAN: This is the last one.
3 THE COURT: I see.
4 BY MR. KERTEZ:
5 Q. And, Officer, if a police officer has a question regarding
6 an order or the law or policy or procedure of the Police
7 Department, then that officer would go to the supervising
8 sergeant, isn't that right, in general?
9 A. I can only refer to myself. And usually if I have a
10 question that I want to be answered I'll usually refer to
11 general orders or the special orders. I will try to find out
12 the answer myself.
13 Q. And, if you are unable to do so, I assume that you would
14 then go to a sergeant, isn't that right?
15 A. Yes.
16 Q. Prior to the administration of the 1993 Sergeant's
17 examination you were informed, weren't you, about what general
18 orders, special orders and statutes would be covered on that
19 test?
20 A. Yes.
21 Q. And the general orders of the Police Department apply
22 citywide, isn't that right?
23 A. Yes, they do.
24 Q. And the special orders of the Police Department also apply
25 citywide, isn't that right?
80
1 A. Yes, they do.
2 Q. And when you received the reading list indicating what
3 would be covered on the examination you didn't register any
4 complaints at that time, did you?
5 A. No. There was no need to.
6 Q. And did you see the examination announcement which
7 indicated the components that would be on the test and how
8 those components would be weighted and scored prior to the time
9 you took the test?
10 A. Prior to the test? No.
11 Q. Yes.
12 You did not see the promotion announcement?
13 A. I saw the announcement.
14 But you're saying how it would be weighted? No, I
15 didn't see that. I don't believe we were informed how the test
16 was going to be weighted prior to the exam.
17 Q. As you sit here today do you recall what the announcement
18 in particular said?
19 A. Specifically?
20 Q. Yes.
21 A. No. Verbatim, no.
22 Q. From the time that you completed the 1993 test until the
23 time that you received your score based on that test you didn't
24 file any complaints, did you?
25 A. No, I didn't.
81
1 Q. Now, at the time that you filed this lawsuit based on the
2 1993 Sergeant's examination you knew your test score, didn't
3 you?
4 A. Yes.
5 Q. And, as you told us, your test score wasn't high enough for
6 you to be promoted based on the results of that examination,
7 was it?
8 A. Based on the results, yes.
9 Q. The 1993 Police Sergeant examination wasn't an easy test,
10 was it, officer?
11 A. It was very ambiguous, a very confusing test.
12 Q. Promotions were made based on the results of the 1993
13 Police Sergeant examination in August of 1994, weren't they?
14 A. I believe they were.
15 Q. And when those promotions were made you didn't file a
16 motion seeking to stop those promotions, did you?
17 A. I think at that time I did consult with attorney Kenneth
18 Flaxman as to the feasibility.
19 Q. But did you file a motion at that time?
20 A. Did I? No, I did not.
21 MR. KERTEZ: I have no further questions at this
22 time.
23 MR. FLAXMAN: No redirect, your Honor.
24 THE COURT: All right. That concludes your
25 testimony, then. You're excused.
82
1 (Witness excused)
2 MS. PAPUSHKEWYCH: Your Honor, may I approach the
3 bench?
4 THE COURT: Yes, you may.
5 MS. PAPUSHKEWYCH: At this time we would like to
6 reinstitute our motion for a denial of the preliminary
7 injunction on the basis that the plaintiff has not established
8 any irreparable harm. The plaintiffs who have testified in
9 this action have not articulated any concrete injury.
10 THE COURT: Well, you haven't rested your case in
11 chief yet, have you?
12 MR. FLAXMAN: No.
13 MS. PAPUSHKEWYCH: Well, I don't know what --
14 THE COURT: Well, why are we renewing it at this
15 stage?
16 MS. PAPUSHKEWYCH: Because the next witness is Dr.
17 Barrett, who is our subject matter expert, your Honor, and I
18 don't think either Dr. Barrett or the --
19 THE COURT: He's being called as an adverse witness.
20 MS. PAPUSHKEWYCH: As an adverse witness. And Dr.
21 Jenks, who is the quantitative social scientist who is
22 plaintiffs' expert, will be table to testify as to the
23 plaintiffs' injuries in this matter.
24 THE COURT: Okay. But I indicated that I would defer
25 ruling on that until additional evidence had been taken.
83
1 So you're -- and you're renewing that.
2 MS. PAPUSHKEWYCH: Renewing that. Okay.
3 THE COURT: Thank you.
4 I'll continue to defer until I hear additional
5 evidence.
6 MR. FLAXMAN: Thank you, your Honor.
7 Our next witness is Dr. Barrett.
8 THE COURT: I take it he's being called as an adverse
9 witness. Is that right?
10 MR. FLAXMAN: That's correct.
11 THE COURT: And we'll go, as I said, until 12:00, and
12 we'll take a short break while we have our new replacement
13 court reporter come on.
14 All right. You may proceed.
15 MR. FLAXMAN: Thank you, your Honor.
16 GERALD BARRETT, PLAINTIFFS' WITNESS, SWORN
17 DIRECT EXAMINATION
18 BY MR. FLAXMAN:
19 Q. Could you state your name, please.
20 A. Gerald Barrett. B-a-r-r-e-t-t.
21 Q. And you're an industrial psychologist, is that correct?
22 A. Yes.
23 Q. And you're also an attorney licensed to practice law in the
24 State of Ohio, is that correct?
25 A. Yes.
84
1 Q. And you're also a tenured professor at a university in
2 Ohio?
3 A. Yes.
4 Q. And what university is that?
5 A. The University of Akron.
6 Q. Okay. And how long have you been at the University of
7 Akron?
8 A. Since 1973.
9 Q. And is it correct that your position at the University of
10 Akron is a full-time position?
11 A. Yes.
12 Q. Does that require about 40 hours of your time per week?
13 A. Approximately, yes.
14 Q. In your work at the University of Akron do you teach?
15 A. Yes.
16 Q. Do you do research?
17 A. Yes.
18 Q. Do you supervise research?
19 A. Yes.
20 Q. Do you publish articles in scholarly journals?
21 A. Yes.
22 Q. And do you prepare papers for presentations at professional
23 organization meetings?
24 A. Yes.
25 Q. Now, in addition to your full-time position at the
85
1 University of Akron are you also the principal of a corporation
2 called Barrett & Associates?
3 A. Yes.
4 Q. And Barrett & Associates is a entity that's in the business
5 of preparing tests for municipalities, among other things, is
6 that correct?
7 A. Yes.
8 Q. Do you work more than 20 hours a week for Barrett &
9 Associates?
10 A. Sometimes I do.
11 Q. And sometimes you work up to 40 hours a week for Barrett &
12 Associates?
13 A. Yes.
14 Q. And Barrett & Associates gets paid for the time that you
15 work for Barrett & Associates, is that right?
16 A. Yes.
17 Q. And they get paid your market rate for your time, is that
18 right?
19 A. Yes.
20 Q. And you're charging the City of Chicago for your work in
21 this case your market rate, is that right?
22 A. Yes.
23 Q. And that's -- how much is that, doctor?
24 A. $250 an hour.
25 Q. So is it correct that your work brings in about at least
86
1 half a million dollars to Barrett & Associates each year?
2 A. Well, I don't have a way of calculating that because, see,
3 we have different types of projects. Some are fixed price
4 projects and some are per-hour projects. So I don't have a
5 great -- a way to know for sure how much I actually bring in
6 directly.
7 Q. Well, Barrett & Associates makes money each year, is that
8 right?
9 A. Some years they've lost money.
10 Q. Okay. Well, is it making money this year?
11 A. In 1995 -- I haven't seen any of the accountant's returns
12 yet, but I assume we did make money.
13 Q. Okay. And --
14 A. In '96 I hope we make money, yes.
15 Q. Now, in your work as an industrial psychologist preparing
16 employment tests do you consider something called the Uniform
17 Guidelines on Employee Selection Procedures?
18 A. Yes.
19 Q. What are the Uniform Guidelines on Employee Selection
20 Procedures?
21 A. It's a document written around 1978 which was -- involved,
22 I believe, four different agencies, among them EEOC and OFCP,
23 which attempted at that point in time to give certain standards
24 for testing.
25 Q. Now, you developed -- you and your organization developed,
87
1 did they not, the test that's at issue in this case?
2 A. Yes.
3 Q. In obtaining the contract from the City of Chicago of
4 develop that test did you and your organization agree to
5 develop a test in conformity with those Uniform Guidelines on
6 Employee Selection Procedures?
7 A. Yes.
8 Q. Now, is it correct that those guidelines recognize three
9 types of validation strategies?
10 A. Yes.
11 Q. And one type is called a criterion-related, is that right?
12 A. Yes.
13 Q. And another type is called content validity, is that right?
14 A. Yes.
15 Q. And the third type that's recognized by the Uniform
16 Guidelines is called construct validity, is that right?
17 A. Yes.
18 Q. Now, are you familiar as an industrial psychologist with
19 the phrase general cognitive ability?
20 A. Yes.
21 Q. What is general cognitive ability?
22 A. It's a construct, and a example of a construct like this
23 would be a -- what's called an IQ test, or an intelligence
24 test, and basically it's derived from years of research that
25 indicates that when you, in effect, factor analyze a variety of
88
1 the tests which are in the cognitive vein you obtain one
2 general factor.
3 Q. So is a test which is a measure of general cognitive
4 ability a test that would have to be validated on a construct
5 validity approach under the Uniform Guidelines on Employee
6 Selection Procedures?
7 A. Well, again you'd have to give me an example of a specific
8 test. But the answer is no, I -- I mean, you could validate a
9 general kind of ability test in many different ways. All three
10 ways could be used to validate it --
11 Q. Well --
12 A. -- if that's your question.
13 Q. Now, is it correct that the scores on the written short
14 answer test that you developed for the test that's at issue in
15 this case -- that those scores are related to general cognitive
16 ability?
17 A. I assume you're talking about the job knowledge test?
18 Q. That's correct.
19 A. If you're asking a general question, you would probably
20 expect that perhaps a general cognitive ability test does
21 relate in general to knowledge.
22 As a general scientific statement, I have done on
23 this specific job knowledge test no studies to see if it does
24 or not does relate to a general cognitive ability test.
25 Q. Well, do you believe that general cognitive ability is a
89
1 good predictor of job performance?
2 A. There have been hundreds of studies conducted, some by
3 myself, which indicates that yes, general cognitive ability is
4 a good predictor of job performance.
5 A. And none of those studies involved the Chicago Police
6 Department, did they, Dr. Barrett?
7 A. I don't recall any studies which directly relate a general
8 cognitive ability test to job performance in Chicago.
9 Q. Okay. Now let's go back to these Uniform Guidelines.
10 We talked about a criterion validation strategy.
11 Does that require empirical data that the selection procedure
12 is predictive or significantly correlated with important
13 elements of job performance?
14 A. A criterion-related validation study is of two types, a
15 concurrent or predictive, and -- which involves obtaining a
16 correlation coefficient, which in our field is called a
17 validity coefficient.
18 Q. Now, a validity coefficient, is that different than a
19 reliability coefficient?
20 A. They're both correlations but they are different
21 conceptually, yes.
22 Q. What is a reliability coefficient?
23 A. Basically it says if you took a test a second time that
24 would be the relationship between the first and second
25 administration for a group of testees.
90
1 Q. And are there generally accepted statistical tests that you
2 have employed to measure the validity coefficient of the tests
3 that -- of this 1993 Sergeant's test?
4 A. We did not perform a criterion-related study.
5 Q. No. Wait. Let me withdraw the question.
6 Are there generally accepted statistical tests that
7 you applied to the 1993 Sergeant's test to determine the
8 reliability coefficient?
9 A. Yes.
10 Q. And there's a number for the reliability coefficient, is
11 that right?
12 A. Yes.
13 Q. And that's if somebody took it on day 1 and took it on day
14 3, is that right?
15 A. Yes.
16 Q. And what -- is that number a number less than 1?
17 A. I think you're asking what it really obtained for the --
18 Q. Right. Yeah.
19 A. I recall we obtained a .87, I believe.
20 Q. Now, if the number was 1.0 would that mean that if you took
21 the test on Monday you would score the same as if you took it
22 on Friday?
23 A. A repeat would score exactly the same, that's correct, in
24 terms of rank order.
25 Q. Now, that's the reliability coefficient?
91
1 A. That's correct.
2 Q. Now, this other one, the validity coefficient, is it
3 correct that you do not have a validity coefficient for the
4 1993 Sergeant's test?
5 A. No. We have never correlated the test with the criteria of
6 job performance.
7 Q. So as you sit here now you can't point to any data and say
8 that this data shows that somebody with a higher score is
9 likely to do better than somebody who received a lower score?
10 A. If I understand your question, we have performed no
11 concurrent predictive validation study using the 1993
12 Sergeant's examination.
13 Q. Now, going back to those uniform guidelines, the content
14 validity as described in the uniform guidelines, does that
15 require data that the content of the selection procedure is
16 representative of important aspects of performance on the job
17 for which the candidates are to be evaluated?
18 A. Generally that's correct, yes.
19 Q. Now, in order to determine the important aspects of
20 performance on the job for which the candidates are to be
21 evaluated what do you do as an industrial psychologist?
22 A. There is a process of showing a test is content valid, and
23 this begins by a job analysis. And the job analysis identifies
24 the important work behaviors for the job. Then you identify
25 the knowledge, skills and abilities for each work behavior.
92
1 And then you go through a process to develop a test; for
2 example, measure the important knowledge required for each work
3 behavior.
4 Q. Can you develop a content valid test without doing a job
5 analysis?
6 A. Yes.
7 Q. Is that what you did for the 1939 Police Sergeant's test?
8 A. No.
9 Q. Now, the Police Sergeant's test consists of three parts, is
10 that right?
11 A. Yes.
12 Q. There's a written multiple choice test that you like to
13 call a job knowledge test, is that right?
14 A. Yes.
15 Q. And then there's a -- something called an in-basket, is
16 that right?
17 A. Yes.
18 Q. Could you describe for us what that in-basket consists of.
19 A. The in-basket we used was a structured in-basket where we
20 identified from our job analysis those administrative functions
21 which are important for a police sergeant in Chicago.
22 We used the exact forms and the exact information
23 that is used by a sergeant to make administrative decisions.
24 And we in fact gave the testees about 30 sheets of paper to
25 organize and solve various problems based on an in-basket
93
1 process.
2 In other words, the candidate is told that, you know
3 "You're coming on the job, you have these pieces of paper to
4 handle" and they are told what sorts of problems they are and
5 how they should be handled.
6 After that, then there were 60 questions to record
7 the decisions they make on some of these issues.
8 Q. Did you obtain any evidence in your job analysis that the
9 content of this in-basket is representative of important
10 aspects of performance on the job of a police sergeant?
11 A. Yes.
12 Q. And you obtained that evidence after you had decided to use
13 that particular testing device, isn't that right?
14 A. What I think is more accurate is, based upon my 30 years of
15 experience, we gave a proposal to the City of Chicago, and in
16 that proposal we stated that we believed the testing process
17 would involve three components: a job knowledge component, an
18 in-basket component, and an oral component.
19 We did not specify because we had not performed a job
20 analysis either the knowledge nor the details of the in-basket
21 nor the details of the oral. But we did have a framework which
22 we thought would be used for Chicago.
23 Q. Is that the standard framework that you recommend for
24 police promotional tests, doctor?
25 A. Each situation is different. Each safety force is -- is
94
1 somewhat different.
2 This is probably the most comprehensive battery we
3 recommended for jurisdictions. But jurisdictions have
4 differing needs, and so for a different jurisdiction you may
5 recommend something different.
6 Q. Now, you submitted this proposal of the three-part test in
7 March of 1993, is that right?
8 A. Yes.
9 Q. And that was before you'd done any job analysis, is that
10 right?
11 A. That's correct.
12 Q. And when you submitted this proposal did you contemplate
13 that the people who received the 2,000 or so highest scores on
14 the written job knowledge test and on the in-basket test would
15 go on to take an oral examination?
16 A. Yes.
17 Q. And, as a matter of fact, that number of 2,000 or so was
18 important in estimating the cost of the contract, is that
19 right?
20 A. Yes.
21 Q. And that's because there was a finite cost for each oral
22 exam that would be scored, is that right?
23 A. Well, there are certainly two issues. One is the
24 administration and the need to do the administration of an oral
25 in a finite time period. So that was a concern, and, yes, also
95
1 the issue of cost. Because if we were to give orals to
2 everyone, particularly eight thousand people, it could be quite
3 costly.
4 Q. Could you tell us what that oral exam consisted of?
5 A. The oral exam consisted of a process where the candidate
6 was taken into a room where there was a test monitor with tape
7 recorders. They were given instructions. The instructions
8 included reviewing a small number of documents concerning a new
9 drug on the street, and they were told they had, I believe, 20
10 minutes to review the material, organize it, and to communicate
11 an oral briefing into the tape recorders.
12 Q. Now, is that the kind of work that police sergeants do,
13 talking into -- or reviewing materials like that and talking
14 and giving speeches?
15 A. It's not unusual, from our job analysis, for a police
16 sergeant to be involved in oral communication with both
17 subordinates and with the public. And certainly there are
18 times when they are called upon to organize and give a briefing
19 to subordinates or even to communicate to the public.
20 Q. Now, oral communication is something that your job analysis
21 showed was important for a police sergeant, is that right?
22 A. Yes.
23 Q. Oral communication consists of speaking