165
 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                               )
             vs.                 )
 6                               )
    CITY OF CHICAGO,             )  Chicago, Illinois
 7                               )  March 6, 1996
                  Defendant.     )  9:00 o'clock a.m.
 8
 9                            VOLUME II
                 TRANSCRIPT OF PROCEEDINGS - Hearing
10              BEFORE THE HONORABLE JOHN A. NORDBERG
11
    APPEARANCES:
12
13  For the Plaintiff:      LAW OFFICES OF KENNETH N. FLAXMAN, P.C.
                            BY:  MR. KENNETH N. FLAXMAN
14                          122 South Michigan Avenue, Suite 1850
                            Chicago, Illinois  60603
15
16  For the Defendant:      CITY OF CHICAGO
                            BY:  MS. DARKA PAPUSHKEWYCH
17                               MS. SHONA B. GLINK
                                 MR. JAY KERTEZ
18                          30 North LaSalle Street, Room 1020
                            Chicago, Illinois  60602
19
20  Court Reporter:         MR. JOSEPH A. RICKHOFF
                            219 S. Dearborn Street, Room 1738
21                          Chicago, Illinois  60604
22                * * * * * * * * * * * * * * * *
                      PROCEEDINGS RECORDED BY
23                     MECHANICAL STENOGRAPHY
                  TRANSCRIPT PRODUCED BY COMPUTER
24
25
 
                                                              166
 1           THE CLERK:  94 C 5727, Adams vs. City of Chicago.
 2  Hearing.
 3           THE COURT:  Sorry for the delay, but I have already
 4  had two emergency matters this morning.  So, who knows what
 5  lies in store for the rest of the day.
 6           But, in any event, I know that it is important that we
 7  move ahead on taking the testimony of the experts.  And the
 8  schedule that we would be following today is -- I was going to
 9  say 9:00, but it would be 9:15 to 12:30.  We will take one hour
10  for lunch.  Part of that I have to use interviewing a
11  prospective law clerk.  And, then, we would resume, again, at
12  1:30 and go to 4:30 in the afternoon.  Then I have another
13  emergency hearing to undertake.  So, if that -- hopefully, that
14  will give enough time to complete the examinations that we have
15  scheduled.
16           MR. FLAXMAN:  We might be done before that.  We're
17  conferring about what we have today, and it really --
18           THE COURT:  Okay.  All right.  Very good.
19           THE COURT:  I forget now exactly -- I know you had
20  completed your adverse examination.  Do you have any additional
21  questions that --
22           MR. FLAXMAN:  Of Dr. Barrett, no.
23           THE COURT:  -- came to mind?  All right.
24           So, we have some limited -- call it redirect -- of --
25           MS. PAPUSHKEWYCH:  Right.
                                       Barrett - cross
                                                              167
 1           THE COURT:  -- Dr. Barrett.
 2           And, then, with the completion of his testimony, you
 3  were going to call your expert then; is that right?
 4           MR. FLAXMAN:  That's right.
 5           THE COURT:  So, his testimony can be completed.
 6           And we have agreed that all experts can sit in on the
 7  proceedings.
 8           All right.  Dr. Barrett, if you will resume your
 9  position at the stand, and you remain under oath.
10     DR. GERALD BARRETT, PLAINTIFFS' WITNESS, PREVIOUSLY SWORN
11           THE COURT:  And, counsel, you may proceed when ready.
12           MS. GLINK:  Shona Glink on behalf of the city.
13                        CROSS-EXAMINATION
14  BY MS. GLINK:
15  Q.  Dr. Barrett, do you recall yesterday testifying about
16  general cognitive ability tests?
17  A.  Yes, I do.
18  Q.  What is a general cognitive ability test?
19  A.  A general cognitive ability test is one which basically
20  measures general intellectual functioning.  And various tests
21  that exemplify this would be the Wechsler, for example,
22  Stanford-Binet, the Ravens -- are examples of general kinds of
23  ability tests.  They can be taken by anybody in the population.
24  Q.  Is the written job knowledge test that you developed as
25  part of your test battery for the 1993 police sergeant's
                                       Barrett - cross
                                                              168
 1  examination a general cognitive ability test?
 2  A.  No.
 3  Q.  In what ways was it not?
 4  A.  I can give an example.  We could have a hundred Ph.D.'s
 5  take the job knowledge test.  Those hundred Ph.D.'s may be all
 6  very proficient in their field.  They would do very poorly on
 7  the job knowledge test.  They have no specific knowledge of the
 8  Illinois Criminal Code, nor do they have specific knowledge of
 9  the general orders or specific orders in Chicago Police
10  Department.
11           Conversely, a general cognitive ability test, if you
12  were to take one of those tests, they would have scored very
13  high on that test.
14  Q.  How would you then describe your written job knowledge test
15  that you developed for the Chicago police sergeant's
16  examination?
17           MR. FLAXMAN:  Object to the form of the question.
18           THE COURT:  Objection overruled.  He may answer.
19  BY THE WITNESS:
20  A.  It's a specific job knowledge test tailored specifically to
21  the knowledge required of a Chicago police sergeant.
22  BY MS. GLINK:
23  Q.  Was any portion of your examination a general cognitive
24  ability test?
25  A.  No.
                                       Barrett - cross
                                                              169
 1  Q.  Have you ever given a cognitive ability test as part of a
 2  battery for a police sergeant's examination?
 3  A.  No.
 4  Q.  And why not?
 5           MR. FLAXMAN:  Objection.  It's not relevant.
 6           THE COURT:  Well, this being the bench as opposed to a
 7  jury, I am not going to consider anything that is not relevant,
 8  but it is difficult at this stage to know exactly what may or
 9  may not turn out to be relevant.  So, I will overrule the
10  objection and permit you to proceed subject to a subsequent
11  motion to strike, if that is appropriate at some point.
12           You may proceed.
13  BY THE WITNESS:
14  A.  First, a general cognitive ability test is apt to have
15  adverse impact.  And, second, it is not pertinent to --
16           THE COURT:  Will you explain what "apt to have adverse
17  impact" --
18           THE WITNESS:  In other words, a general --
19           THE COURT:  I do not want to interrupt your testimony,
20  but just be sure that we cover that.
21           MS. GLINK:  I will follow up with that, Judge.
22           THE COURT:  You may proceed.
23  BY THE WITNESS:
24  A.  And, second, it's my belief in my analysis it's more
25  important to tap the specific knowledge required to perform a
                                       Barrett - cross
                                                              170
 1  job as a sergeant.
 2  BY MS. GLINK:
 3  Q.  And when you said "adverse impact," what do you mean by
 4  adverse impact?
 5  A.  I mean, differences -- mean differences between blacks and
 6  whites who take the test.
 7  Q.  And what is your concern about adverse impact with
 8  cognitive ability tests?
 9  A.  Well, there is a lot of research which indicates that it
10  might have or even maximize potential adverse impact between
11  groups.
12  Q.  You also stated yesterday in your testimony that the
13  reliability coefficient on the three-part test that you
14  developed was, I believe you said, .87; is that correct?
15  A.  Yes.
16  Q.  And, in your opinion, based on your experience as a test
17  developer, is a .87 reliability coefficient a high coefficient?
18  A.  Yes.
19  Q.  You indicated yesterday, as well, that your initial
20  proposal to the City of Chicago included a recommendation that
21  the examination consist of three parts:  A written job
22  knowledge test, an in-basket simulation and oral briefing
23  exercise; is that correct?
24  A.  Yes.
25  Q.  You further testified that you conducted a job analysis of
                                       Barrett - cross
                                                              171
 1  the job of Chicago Police Department -- police sergeant after
 2  you submitted your proposal to the City of Chicago with that
 3  recommendation; is that correct?
 4  A.  Yes.
 5  Q.  What was this initial recommendation based upon?
 6  A.  It was based upon over 20 years of experience in developing
 7  tests for safety forces.
 8  Q.  And how were you able to determine based on this experience
 9  that you should propose -- that your proposal should consist of
10  three -- a three-test battery?
11  A.  Based on our past analyses -- job analyses of the job of
12  sergeants in other jurisdictions, this type of three-component
13  test battery covered the major work behaviors of a police
14  sergeant.
15  Q.  At the time that you submitted your proposal, had you
16  developed any of the specific questions that would be used in
17  the testing process for the sergeant's examination?
18  A.  No.
19  Q.  Isn't it also true that your proposal states that the
20  development of the three test components would be based on the
21  results of your job analysis?
22  A.  Yes.
23  Q.  Did the job analysis that you conducted support your
24  initial proposal that the three-part test consist of a written
25  job knowledge portion, an in-basket simulation component and an
                                       Barrett - cross
                                                              172
 1  oral briefing exercise?
 2  A.  Yes.
 3  Q.  If the job analysis had not supported your initial
 4  recommendation, would you have altered the test components to
 5  conform with the results of your job analysis?
 6  A.  Yes.
 7  Q.  Do you know when the sergeant's examination announcement
 8  was sent out to applicants in this instance?
 9  A.  I believe it was September or October of '93.
10  Q.  Do you have an understanding as to whether the job
11  announcement contained a statement as to what components would
12  be included in the sergeant's examination?
13  A.  Yes.
14  Q.  And do you know what components that announcement stated?
15  A.  It contained the components of job knowledge, the in-basket
16  and the oral briefing exercise.
17  Q.  At the time that the examination announcement was sent out
18  to applicants, had you completed your job analysis for the job
19  of police sergeant?
20  A.  Yes.
21  Q.  And had you confirmed at that time that the job analysis
22  supported the three components that were listed on the
23  examination announcement?
24  A.  Yes.
25  Q.  Dr. Barrett, you also testified yesterday that the written
                                       Barrett - cross
                                                              173
 1  job knowledge test was administered on December 4th, and that
 2  the in-baskets -- of 1993, excuse me, and that the in-basket
 3  simulation was administered on December 5th of 1993; is that
 4  correct?
 5  A.  Yes.
 6  Q.  And you further testified that you scored these
 7  examinations before administering the oral briefing exercise;
 8  is that also correct?
 9  A.  Yes.
10  Q.  Dr. Barrett, did all candidates who took the written job
11  knowledge component of the examination and the in-basket
12  simulation component of the examination take the oral briefing
13  exercise?
14  A.  No.
15  Q.  How many individuals, if you know, took the first two
16  components of the examination?
17  A.  4,700, I believe.
18  Q.  And how many individuals took the oral briefing exercise,
19  if you know?
20  A.  As I recall, there were 2,044 who could have gone on, and I
21  think 1937 actually took the oral component.
22  Q.  But 2,044 were invited, as far as you know, to take the
23  oral examination?
24  A.  Yes.
25  Q.  How did you determine who would be allowed to take the oral
                                       Barrett - cross
                                                              174
 1  briefing exercise?
 2  A.  It was really based upon three separate analyses we
 3  conducted.  The oral component is the most expensive component,
 4  most time-consuming component.  It's also the component where
 5  there is the most problem with potential revealing the contents
 6  of the oral briefing.  So, in our proposal, we first, before we
 7  submitted our proposal, we first did a simulation.
 8  Q.  Let me stop you there.
 9           Can you explain to the Court what a simulation is?
10  A.  Basically, it was a computer simulation to determine
11  hypothetically, if we obtained certain scores, what would
12  occur, so that we would pass through on to the oral portion
13  everybody who had any probability, based upon their test scores
14  from the first two components, of being selected as a police
15  sergeant based on their final score.
16  Q.  How did you determine who had a probability of being
17  selected or had a probability of ultimately being selected for
18  promotion to sergeant based on the results of your simulation?
19  A.  We wanted to pass through the person who had the -- any
20  score below the lowest score we passed through had no
21  probability, based on the fact they received a hundred percent
22  on the oral.  Hypothetically, we said, "All right, let's assume
23  somebody would receive a score of 100 percent on the oral --
24  perfect score."
25           We would add that perfect score on to their scores
                                       Barrett - cross
                                                              175
 1  they obtained for the in-basket and the job knowledge test that
 2  would give them a final score.  And that final score would not
 3  allow them, because it would be too low, to actually be
 4  promoted.
 5           THE COURT:  Have we had any testimony about the
 6  decision on having equal weight given to all three parts?
 7           MS. GLINK:  Not yet, your Honor.  We intend to cover
 8  that in our direct examination.
 9           THE COURT:  Because that seems to be the presumption
10  behind that last answer.
11           MS. GLINK:  Would you like me to bring some of that
12  testimony out --
13           THE COURT:  Well, I think --
14           MS. GLINK:  -- for your understanding?
15           THE COURT:  -- at some point, I think it needs -- the
16  timing needs to be brought out.
17  BY MS. GLINK:
18  Q.  Well, Dr. Barrett, let me ask you, how was --
19           THE COURT:  Mr. Flaxman may want to bring it out, too,
20  but why do we not --
21           MS. GLINK:  Sure.
22           THE COURT:  I just need to see what the timing is on
23  this.
24           MS. GLINK:  Sure.
25  BY MS. GLINK:
                                       Barrett - cross
                                                              176
 1  Q.  Dr. Barrett, at some point, did you determine how the
 2  examination should be weighted?
 3  A.  Yes, we did.
 4  Q.  And at what point in your examination -- in the development
 5  process did you determine how the three parts of your
 6  examination should be weighted?
 7  A.  We made that determination after the job analysis was
 8  completed and before the posting notice was sent out.  It would
 9  be sometime in September, as I recall.
10  Q.  And that was before any component part of the examination
11  was administered; isn't that correct?
12           THE COURT:  That's September of '93 we are dealing
13  with?
14           MS. GLINK:  September of 1993.
15  BY MS. GLINK:
16  Q.  Is that before any part of the examination had been
17  administered?
18  A.  Yes.
19  Q.  And how did you reach the decision to weight the three
20  parts of your examination equally?
21  A.  There are a number of factors I considered.  The first
22  factor is that there is a large body of professional literature
23  and scientific literature, which deals with the topic of
24  weighting of tests.  And that general literature which I
25  reviewed indicated that the equal weighting model usually gave
                                       Barrett - cross
                                                              177
 1  you the best prediction.  This is even if you might use
 2  regression weights.  Still, that's from a sample.  Still, the
 3  best prediction for the population is often found to be equal
 4  weighting.
 5           So, you have a strong presumption that that, from a
 6  scientific point of view, is the best process.
 7  Q.  Let me stop you there for a minute, Dr. Barrett.
 8           Did you submit an affidavit in this case?
 9  A.  Yes.
10  Q.  And is that the affidavit that Mr. Flaxman referred to
11  yesterday --
12  A.  I hope so.
13  Q.  -- as the affidavit that was attached to our memorandum in
14  opposition to defendant's motion for summary judgment -- motion
15  for preliminary injunction, excuse me?
16           Let me show you --
17           MS. GLINK:  Do you know what it was marked?
18           MR. FLAXMAN:  Defendant's Exhibit E.
19  BY MS. GLINK:
20  Q.  It was our Defendant's Exhibit E.
21           MS. GLINK:  May I approach the bench?
22           THE COURT:  Yes, you may.
23           MS. GLINK:  Do you have that with you, your Honor?
24           THE COURT:  Yes, I do.
25  BY MS. GLINK:
                                       Barrett - cross
                                                              178
 1  Q.  I'm going to give you a copy of this.
 2           (Document tendered.)
 3  BY MS. GLINK:
 4  Q.  Dr. Barrett, is that the affidavit that you submitted in
 5  this case?
 6  A.  Yes, it is.
 7  Q.  And is your scientific literature review set forth anywhere
 8  in this affidavit?
 9  A.  Yes, it is.
10  Q.  And can you tell me where in this affidavit you set forth
11  the articles that you reviewed on equal weighting of test
12  components?
13  A.  It's in Appendix B, Page 26.
14  Q.  And this is the literature that you're referring to -- that
15  you have just referred to in support -- as one basis for
16  supporting your decision to weight the three tests of the
17  components equally; is that correct?
18  A.  Yes.
19  Q.  Okay.
20           Other than the scientific literature that you
21  reviewed, what other bases, if any, did you have for
22  determining that the examination should be weighted equally?
23  A.  The second basis was the fact I reviewed the job
24  description and the associated knowledge, skills and
25  abilities.  And that also supported the equal weighting
                                       Barrett - cross
                                                              179
 1  approach.
 2  Q.  Can you explain that a little bit to me, Doctor?
 3  A.  Well, it's just more or less a judgmental approach by
 4  looking at the various components, the major work behaviors,
 5  the tasks performed.  It was a judgmental approach.  It was
 6  nothing formal.
 7           A third more formal approach, I had two of my job
 8  analysts, who had completed the major part of the job analysis
 9  of the police sergeant, do a more formal approach linking the
10  various work behaviors with the various test components.  And,
11  again, we found support for the test weighting process.  That's
12  in Appendix D.
13  Q.  And that's also included in your affidavit?
14  A.  Appendix D, Page 57, it starts.
15           As a last part of the process, we also did an abstract
16  computer simulation using a very theoretical approach, a very
17  abstract approach, which we had developed for this project,
18  actually.
19  Q.  And was this the first time that you had ever used this
20  sort of computer simulation?
21  A.  Yes, it is, for this project -- type of project; and, also,
22  gave support to the equal weighting approach.
23  Q.  Let's go back to this judgmental or more formal weighting
24  rationale study that was conducted by the analysts that you
25  mentioned.  Are these individuals who work for Barrett &
                                       Barrett - cross
                                                              180
 1  Associates?
 2  A.  Yes.
 3  Q.  And do you recall the names of the individuals who
 4  conducted this analysis?
 5  A.  Ron Carabini, Sophia Siambekos, S-i-a-m-b-e-k-o-s.
 6  Q.  And are these two individuals -- do these two individuals
 7  have specialized training in the field of industrial psychology
 8  and psychometrics?
 9  A.  Yes.
10  Q.  And are you familiar with their work?
11  A.  Yes.
12  Q.  And have you reviewed the work that's contained in this
13  affidavit?
14  A.  Yes.
15  Q.  And do you agree with the conclusions that are reached by
16  these two associates who work with you?
17  A.  Yes.
18  Q.  In your professional opinion, Dr. Barrett, is the decision
19  to weight the three test components of the police examination
20  valid?
21  A.  Yes.
22  Q.  And does the weighting scheme that you adopted in this
23  examination conform with the uniform guidelines on employee
24  selection procedure?
25  A.  Yes.
                                       Barrett - cross
                                                              181
 1  Q.  Now, this decision to weight the three parts of your
 2  examination equally, that was made before -- was that made
 3  before you conducted this computer simulation to determine who
 4  should go on to the oral portion of the examination?
 5  A.  Well, it was made -- that -- the first one, of course,
 6  before the proposal was submitted, was not based upon that, any
 7  sort of weighting scheme, at that point in time, except we made
 8  it broad enough.  So, it could be equally or some variation
 9  from that.
10  Q.  Okay.
11           Could you explain that to me?
12  A.  Well, in other words, you can start off by saying it's
13  equal.  This is before a proposal was done.  Then take a
14  ten-percent variation, what would occur.  Say, we weighted the
15  oral higher -- ten percent higher, what would occur.
16           So, we built in a safety factor.  But right before,
17  after we received the results, of course, and the weighting had
18  been done, then we could be more precise.  And we verified the
19  fact that the 2,044 would, again, have -- not caused a problem
20  for us.  No one who received a score below that would have any
21  probability of being promoted.
22  Q.  Let me stop you there and see if I understand what you are
23  saying.
24           You conducted a computer simulation as part of your
25  initial proposal, and this simulation didn't have any set
                                       Barrett - cross
                                                              182
 1  weights, it had a variation of weights equal weighting plus ten
 2  percent or minus ten percent --
 3  A.  Right.
 4  Q.  -- is that correct?
 5  A.  Yes.
 6  Q.  And when you actually received the results from your
 7  written multiple choice and your in-basket simulation, you then
 8  conducted a second computer simulation?
 9  A.  Yes, based on the actual data now.  We had really the
10  actual information.
11  Q.  And at the point that you conducted this second simulation,
12  you had, at this point, determined that equal weighting was the
13  most valid weighting scheme, in your opinion?
14  A.  Yes, the posted notice had come out, and, specifically, it
15  said it's going to be equal weighted.
16  Q.  And, so, this second simulation, you used the actual
17  results and you actually weighted the first two components
18  equally with the third one in determining who should -- who
19  would be able to move forward to the oral?
20  A.  Yes.
21  Q.  Did you conduct any other -- you mentioned a third computer
22  simulation.  Did you conduct any other simulations with regard
23  to the determination of who should go on to the oral
24  examination?
25  A.  Not before we obtained the actual results; but, the third,
                                       Barrett - cross
                                                              183
 1  we used a confirmation after we obtained the results from the
 2  actual oral.  And we saw, in fact, that we were correct.  No
 3  one with a low score --
 4  Q.  No one -- excuse me?
 5  A.  No one with a low score on the written test -- and we add
 6  on the maximum you could actually receive in the oral -- would
 7  have any probability of being selected as a police sergeant.
 8  Q.  What was your basis in terms of your analysis for the
 9  probability of success or being selected?  Did you have a
10  particular number in mind when you were conducting that
11  analysis?
12  A.  As I recall, it was 500, and I -- as the number we had in
13  mind.
14  Q.  Okay.
15           So, your analysis showed that -- am I correct that
16  your analysis showed that nobody who went on to take any --
17  everybody who went on to take the oral briefing exercise had
18  the potential of placing in the top -- at least in the top 500
19  of test takers once all three test components were given?
20  A.  Well, we had actually a fudge factor in there.  Some of
21  those people went on to the oral and probably had an extremely
22  low probability or no probability, we found out later, of being
23  promoted.  I think it came down to 700 something.
24           So, we had an error factor in there that everybody
25  that went through -- I won't say had a probability of being
                                       Barrett - cross
                                                              184
 1  promoted, but the probability is almost 0 for some people, I
 2  would say.  But we wanted to be sure everybody had an
 3  opportunity who had anything feasible because you can't be that
 4  exact.
 5           THE COURT:  I am not following the rationale for this
 6  at all.
 7           MS. GLINK:  Let me see if I can try and clarify.
 8           THE COURT:  And if you figure that maximum score on
 9  the first two and a zero on the last score, if that is a base
10  that you are referring to with respect to the estimated number
11  that would be appointed from this list, I think I can
12  understand it.
13           But I am not quite sure now what he is saying.  So,
14  perhaps --
15           MS. GLINK:  I believe, your Honor, it's actually the
16  reverse.
17  BY MS. GLINK:
18  Q.  Isn't that correct, Dr. Barrett?  It's if you were to get a
19  maximum score on the oral?
20  A.  Exactly.
21  Q.  Could you have placed -- is this correct, Dr. Barrett:  If
22  you were to have received a maximum score on the oral, you
23  allowed everybody who, if they had gotten a hundred on the
24  oral, would have had an opportunity of placing in the top -- or
25  had a potential of placing in the top 500 of test scores
                                       Barrett - cross
                                                              185
 1  overall?
 2  A.  That's correct.
 3  Q.  So that everybody who went on to the oral, you allowed to
 4  go forward based on the assumption that, if they received a
 5  perfect score on the oral component, given their performance on
 6  the first two parts of the examination --
 7           THE COURT:  But assuming that others get 0, I take it,
 8  in a sense.
 9           MS. GLINK:  I believe, your Honor --
10  BY MS. GLINK:
11           If this is correct, Dr. Barrett, that of anybody who
12  did not take -- everybody who took -- everybody who was not
13  allowed to take the oral, everybody who was not invited --
14           THE COURT:  Right.
15  BY MS. GLINK:
16  Q.  -- to take the oral, did not receive a high enough score on
17  the first two parts of the examination, even if they had scored
18  perfectly?
19           THE COURT:  You assumed that they would get a perfect
20  one --
21           MS. GLINK:  Right.
22           THE COURT:  -- for purposes of the analysis?
23           MS. GLINK:  Right.
24           So that their scores on the first two were not high
25  enough, that, if you were to add a hundred percent of the -- if
                                       Barrett - cross
                                                              186
 1  you were to give them a hundred percent on the oral, they still
 2  would not have attained a high enough score to place them high
 3  enough on the list to have a potential of being promoted.
 4           THE COURT:  But why do you not have to assume that
 5  everybody is going to get a hundred for purposes of --
 6           MS. GLINK:  We are assuming that everybody will get a
 7  hundred on the oral -- the computer simulation, if I'm correct,
 8  Dr. Barrett --
 9           THE COURT:  So, there really is not a factor.
10           MS. GLINK:  Everybody is --
11           THE COURT:  The third score is not really a factor for
12  purposes of the analysis.  You are only looking at the first
13  two, anyway.
14           MS. GLINK:  For determining who goes on to the oral --
15           THE COURT:  Right.
16           MS. GLINK:  -- everybody was assumed to get a hundred
17  on the oral.  And only those people whose combination of the
18  three component test scores was high enough to place them
19  ultimately down the road given that everybody gets a hundred on
20  the oral were allowed to go -- to move forward to take the oral
21  examination.  Because anybody who received a hundred on the
22  oral examination whose scores were too low on the first two
23  components that they would not have had a potential of being
24  promoted were not allowed to go forward.
25           THE COURT:  Yes, the only purpose -- the question I
                                       Barrett - cross
                                                              187
 1  have in analyzing it, it seems to me that it does not make --
 2  you do not even use the third score of a hundred for your
 3  analysis because you give it to everybody.  So, there is no
 4  differentiation there at all.  You are only looking to what the
 5  test scores show --
 6           MS. GLINK:  But the way to determine --
 7           THE COURT:  And you want to be sure that -- so, you
 8  are grading it depending upon what percentage of the total
 9  score, so that you would determine what ranking they would be
10  able to achieve given that everybody is going to do perfect on
11  the third.  And I am not sure that that -- what the reason for
12  the validity of that is.
13           THE WITNESS:  Your Honor, may I try and explain it?
14           THE COURT:  Yes.
15           THE WITNESS:  It's not everyone, of course.  You are
16  absolutely correct.  If you add a constant to all the test
17  scores, a hundred percent to everyone -- the top 2,000, doesn't
18  change anything.  The real concern is adding a hundred percent
19  to the lowest score and seeing where that would put you.  If
20  you add a hundred percent to the 2,000th person, how high will
21  that put them?  And it won't put them very high because the
22  other people have very high scores on the first two
23  components.
24           So, you don't assume that the top ranking people on
25  the job knowledge test and the in-basket are -- will receive a
                                       Barrett - cross
                                                              188
 1  hundred percent because your analysis is correct.  That would
 2  make no sense.
 3           So, we were really concerned that everybody -- the
 4  lowest scores was where we add the hundred percent, not the top
 5  scores.
 6           THE COURT:  Now, if I could ask why 500 was used?  Was
 7  there some determination made in advance that they were only
 8  going to appoint 500 from this test or --
 9           MS. GLINK:  Based on our past experience, there was a
10  --
11           THE COURT:  Well, I mean --
12  BY MS. GLINK:
13  Q.  Did you have any understanding --
14           THE COURT:  Wait a second.
15  BY MS. GLINK:
16  Q.  -- of where that 500 number came?
17  A.  Yes, that was the maximum number I was told which would
18  ever be promoted from this list.  In fact, we now know that
19  it's going to be less than 500, but that was a maximum number
20  that we used.
21  Q.  And who told you this?
22  A.  It came from someone in the law department or police
23  department.  I'm not sure which area it came from.
24  Q.  So, at the time you were conducting this analysis at the
25  proposal stage, did you know -- did you have an understanding
                                       Barrett - cross
                                                              189
 1  at that stage as to how many the City of Chicago intended to
 2  promote as a maximum number off of this list?
 3  A.  That was our understanding, it would be 500 is a maximum
 4  number.
 5  Q.  So, your analysis was based on that?
 6  A.  Yes.
 7  Q.  Okay.
 8           MS. GLINK:  Has this been sufficiently clarified?
 9           THE COURT:  I think so.
10           I hesitate to interrupt, but I just was not following
11   -- or I want to be sure that I had the right view of the
12  analysis.
13           So, proceed.
14  BY MS. GLINK:
15  Q.  Was the determination of who would advance to the oral
16  based on any measure of an applicant's minimum qualifications
17  for the job?
18  A.  No, it was not.
19  Q.  Dr. Barrett, when you conduct a job analysis, would you
20  agree that it's important to ask a sergeant about the content
21  of his job, meaning what he does on a daily basis?
22  A.  Yes.
23  Q.  And why is this important?
24  A.  This is how we basically determine what the major work
25  behaviors are for a job description, and how -- what knowledge
                                       Barrett - cross
                                                              190
 1  is important.
 2           And, also, it's critical for us to develop the job
 3  knowledge test, the in-basket simulation and the oral briefing
 4  exercise, because all based upon the content of the police
 5  sergeant's job.  That's how we develop these tests.
 6  Q.  Do you also believe that it's important to ask supervisors
 7  of lieutenants what -- I mean, supervisors of sergeants, like
 8  lieutenants and captains, what a sergeant does on a daily
 9  basis?
10  A.  Yes.
11  Q.  And why is that important?
12  A.  Well, this tells you, again, a different perspective,
13  because they review the sergeant's work and they have a good
14  concept of what a sergeant does.
15           And, also, it tells you what we might call critical
16  incidents which occur, which differentiate people.  In other
17  words, a lieutenant might say, "Well, we have a problem with
18  some sergeants because, when they review reports, they don't
19  have" -- "are not clear about assuring patrol officers put down
20  all the elements of a crime," for example.
21           So, they tell you things which causes problems for
22  them as lieutenants.
23  Q.  And once you've identified these critical incidents, how do
24  they play a factor in the development of a test process?
25  A.  Well, it helps you pinpoint the areas of knowledge which
                                       Barrett - cross
                                                              191
 1  are important, the areas of administrative decision making and
 2  the type of oral communication, which are important.
 3  Q.  And did you do this?  Ask sergeants, lieutenants and
 4  captains about the job of sergeant during your job analysis
 5  process?
 6  A.  Yes.
 7  Q.  I'm going to show you what's been marked as Defendant's
 8  Exhibit D, which was attached to our brief in opposition to
 9  this preliminary injunction hearing.
10           (Document tendered.)
11  BY MS. GLINK:
12  Q.  Can you tell me what this is, Dr. Barrett?
13  A.  This is a report on the development of the administration
14  of the promotion process for the job of Chicago police
15  sergeant.
16  Q.  And is this the technical report that you prepared for the
17  City of Chicago, based on your development of that examination?
18  A.  Yes.
19           MS. GLINK:  Can you give me a second, your Honor?
20           THE COURT:  Okay.
21           (Brief pause.)
22           THE COURT:  While she is looking, just to clarify,
23  this is a report based upon the December '93 examination that
24  was undertaken?
25           THE WITNESS:  Yes, and the oral, also.
                                       Barrett - cross
                                                              192
 1           THE COURT:  And this is prepared roughly a year later,
 2  right?
 3           THE WITNESS:  Well, the oral was not given until, I
 4  believe, March of 1994.  So, it would be prepared -- well, it
 5  was partially prepared, of course, but it was finalized in
 6  December 13th, 1994.
 7           THE COURT:  Right.
 8  BY MS. GLINK:
 9  Q.  Does this report contain the master job description that
10  you prepared at the end of your job analysis process?
11  A.  Yes.
12  Q.  Okay.
13           And let me direct you to Appendix C at Page -- at the
14  end of the report.  It's starting at C-1.
15  A.  Yes.
16  Q.  Is that the master job description that you prepared for --
17  at the end of your job analysis process?
18  A.  Yes.
19  Q.  And does this master job description also include a listing
20  of those knowledge, skills and abilities that you identified
21  during your job analysis process as important to the job of
22  sergeant?
23  A.  Yes.
24  Q.  And does it also include a listing of all the individuals
25  that you interviewed during your job analysis process?
                                       Barrett - cross
                                                              193
 1  A.  Yes.
 2  Q.  Okay.
 3           Do you also recall yesterday testifying that you
 4  linked all of the items on your written job knowledge test to
 5  the major work behaviors and tasks identified in your master
 6  job description?
 7  A.  Yes.
 8  Q.  And isn't that, when you said that you were referring to
 9  this master job description, Appendix C; is that correct?
10  A.  Yes.
11  Q.  Okay.
12           Did you also link the items on your written job
13  knowledge test to the knowledges identified in your master job
14  description?
15  A.  Yes.
16  Q.  And those knowledges are set forth at Page C-18 through --
17  C-18 and C-19; is that correct?
18  A.  Yes.
19  Q.  I'm going to direct you now to Appendix I, as contained in
20  your technical report.
21  A.  Yes.
22  Q.  Is that the linkage chart that you were referring to
23  yesterday when Mr. Flaxman was asking you questions about what
24  tasks were being tapped by your written job knowledge test?
25  A.  Yes.
                                       Barrett - cross
                                                              194
 1  Q.  Can you describe for me and for the Court what this chart
 2   -- what information is set forth in this chart?
 3  A.  This was --
 4           THE COURT:  Can I have the identification of where it
 5  is located, again.
 6           MS. GLINK:  It's Appendix I of the technical report.
 7           THE COURT:  Okay.
 8           MS. GLINK:  That's Exhibit D.
 9           THE COURT:  That's Exhibit D.  So, it's Appendix I to
10  Exhibit D.
11           Is there -- is it -- do we have a page number on
12  this?
13           MS. GLINK:  It's just I-2, beginning at I-2.  There's
14  not a --
15           THE COURT:  Oh, okay.  All right.  I see now how it is
16   -- some of it is on the side here.
17           All right.  I have it.  Go ahead.
18  BY MS. GLINK:
19  Q.  Can you briefly describe for me what this -- what
20  information is contained in this chart?
21  A.  The left-hand column is the test item number from the job
22  knowledge test, and you'll see it contains 150 separate items.
23           The right-hand column is simply our linkage to the
24  work behavior in the master job description indicating that
25  this is a link between the knowledge tapped by that test item
                                       Barrett - cross
                                                              195
 1  and the work behavior and knowledge acquired there.
 2           This is not required by a procedure.  We just wanted
 3  to illustrate the fact that each item is relevant, it's not an
 4  irrelevant item, it does relate to the actual work behavior of
 5  a police sergeant.
 6  Q.  Okay.
 7           And in the column on the right-hand side, when it says
 8  Roman numeral I-A-4, that is a reference back to Appendix C, is
 9  it not, which lists the actual tasks and work behaviors that
10  you identified?
11  A.  Yes, it is.
12  Q.  So, for instance, Item No. 1, which is tapping section
13  I-A-4 of your master job description, would be linked back to
14  1, which is:  "Monitors and supervises the activities of police
15  officers; A, monitors radio communication, communicates with
16  police officers by radio and telephone," and, then, Section 4
17  of that, is that correct, of that section?
18  A.  That's correct.
19  Q.  And can you read for me what Section I-A-4 -- what tasks
20  are listed in Section I-A-4?
21  A.  I-A-4 is:  "Assist officers, if needed, by answering
22  questions via radio (e.g., how to interview reluctant,
23  disoriented, injured, mentally ill and minor witnesses or
24  witnesses requiring translators; how to appropriately
25  categorize incidents for reporting and notification purposes;
                                       Barrett - cross
                                                              196
 1  how to identify whether or not elements of a particular
 2  incident exist to indicate probable cause, justification for an
 3  arrest or that charge is appropriate, how to identify which
 4  report should be used for a particular situation in order to
 5  avoid incomplete report packages; how to process arrestees; how
 6  to inventory evidence; how to deal with situations involving
 7  tender-aged children; refer to departmental guidelines when
 8  necessary.
 9  Q.  So, Section I-A-4 includes all of those tasks that you've
10  just read?
11  A.  Yes.
12  Q.  You testified yesterday that you wouldn't be surprised if
13  43 of your 150 questions on your written job knowledge test
14  tested for the tasks set forth in Section I-A-4; is that
15  correct?
16  A.  That's correct.
17  Q.  You also said that you wouldn't be surprised if 56 of the
18  150 questions on your written job knowledge test tested for
19  tasks set forth in Section I-A; and, that is, in broad terms,
20  "Monitors radio communications, communicates with police
21  officers by radio or telephone."
22           And that includes three subparts -- or four subparts,
23  I apologize, underneath that subheading; isn't that correct?
24  A.  That's correct.
25  Q.  And one of those subheadings is the one that you have just
                                       Barrett - cross
                                                              197
 1  read into the record?
 2  A.  That's correct.
 3  Q.  And you further said that you wouldn't be surprised if 29
 4  of the items specifically tap Section I-A-3 of the master job
 5  description.  Can you just briefly describe the kinds of tasks
 6  that are set out in Section I-A-3?
 7  A.  Listens to radio communications in order to monitor
 8  officer's behavior and to oversee dispatcher's assignments of
 9  cars and jobs.
10           And below that are a number of specific tasks going A
11  through D.
12  Q.  Okay.
13           Isn't it a fact, Dr. Barrett, that many of the
14  questions on your 150-item test were linked to more than one
15  task on your master job description?
16  A.  Yes.
17  Q.  And how is it possible for an item or one question on an
18  examination to be linked to more than one major work behavior
19  of a sergeant?
20  A.  Because the same knowledge underlies that behavior.
21  Q.  Can you give me an example?
22  A.  Well, for example, like many of the items, as I recall,
23  have to do with the elements of a crime from the Illinois Code,
24  and that you will find, for example, I think, Item 90, for
25  example -- let's see, Item 90.
                                       Barrett - cross
                                                              198
 1  Q.  And that's at I-5 of Appendix I -- I mean, I-6, excuse me,
 2  of Appendix --
 3  A.  Yes.
 4           And, for example, we have under that, it was rated as
 5  "1-A and; 2."  And, so, clearly we have two major work
 6  behaviors there, and that sort of knowledge of the elements of
 7  a crime underlie both types of behavior.
 8  Q.  What is Section 2 -- what tasks are set forth in Section 2
 9  of your master job description?
10  A.  "Reviews and forwards forms and reports submitted by police
11  officers."
12  Q.  And there are two major subsections in that, an A and a B,
13  as well as Subsections 1 through 4 under A; is that correct?
14  A.  Yes.
15  Q.  So, many tasks are set forth in Section 2?
16  A.  That's correct.
17  Q.  Dr. Barrett, are there certain tasks and major work
18  behaviors that are not tapped by this 150-item job knowledge
19  test that you developed?
20  A.  Yes.
21  Q.  In addition to the written job knowledge test for police
22  sergeant, your test included an in-basket simulation test, as
23  well as an oral briefing exercise; isn't that correct?
24  A.  Yes.
25  Q.  Were these three test components designed to tap for
                                       Barrett - cross
                                                              199
 1  different parts of the job of sergeant?
 2  A.  Yes.
 3  Q.  And are some of the tasks and major work behaviors not
 4  covered by your written job knowledge test tapped by the other
 5  two components of your examination?
 6  A.  Yes.
 7  Q.  The in-basket and the oral briefing exercise?
 8  A.  Yes.
 9  Q.  What major work behaviors and knowledge skills and
10  abilities are tapped by the in-basket simulation?
11  A.  Basically, the administrative decision-making aspect is
12  tapped, which includes analysis of review of reports, that sort
13  of type of decision making.
14           The oral briefing, of course, taps the oral
15  communication aspect of the job.
16  Q.  Did you also create linkage charts similar to Appendix I
17  for the written job knowledge test for the in-basket simulation
18  test?
19  A.  Yes.
20  Q.  And let me direct you to Appendix L of your report.
21           MS. GLINK:  Have you located that, your Honor?
22           THE COURT:  Yes, I have it here.
23  BY MS. GLINK:
24  Q.  And is Appendix L the linkage tables for the in-basket
25  simulation that you developed?
                                       Barrett - cross
                                                              200
 1  A.  Yes.
 2  Q.  Can you briefly describe for me what information is
 3  contained on Page L-2 of your in-basket simulation linkage
 4  chart?
 5  A.  The L-2 table -- is the table you're referring to?  Table
 6  L-2?
 7  Q.  Table L-1 on Page L-2, excuse me.
 8  A.  Yes.
 9           Table L-1, it has the dimensions in the left-hand
10  column "Analysis," "Administrative Verification."
11  Q.  And what do you mean by "dimensions"?
12  A.  That's the dimensions on -- in that we were tapping
13  underneath the in-basket in terms of the broad category of
14  administrative decision making.  And each of these three
15  dimensions -- analysis, administrative verification,
16  applications of rules and procedures -- then goes across and
17  links it to the abilities, the rationale, and the related major
18  work behaviors and the in-basket modules themselves.
19  Q.  So, Column No. 2, which is labeled, "Ability," what kind of
20  information is contained in that column?
21  A.  Just describes what the police sergeant has to do.  For
22  example, we see that, to gather relevant information, compare
23  information from various sources, identify critical
24  information, so forth, as being under -- defining that analysis
25  section.
                                       Barrett - cross
                                                              201
 1  Q.  Okay.
 2           And is that information you obtained through your job
 3  analysis process?
 4  A.  Yes.
 5  Q.  And the second -- the third column, which is labeled,
 6  "Rationale," can you explain what information is contained in
 7  that column?
 8  A.  Here we describe what actually a sergeant does, in terms of
 9  a sergeant, for example, analyzes statements and actions of
10  suspects, et cetera.
11  Q.  And where does the information contained in this rationale
12  come from?
13  A.  Again, this comes from a job analysis.
14  Q.  The fourth column is labeled, "Related Major Work
15  Behaviors."
16           Can you explain what information is contained in this
17  column?
18  A.  This shows that this sort of analysis is required in these
19  major work behaviors.
20  Q.  And these major work behaviors are, again, the major work
21  behaviors identified in your master job description; is that
22  correct?
23  A.  That's correct.
24  Q.  So, when you say Section 1, "Monitors and supervises
25  activities of police officers," this was identified as a major
                                       Barrett - cross
                                                              202
 1  task -- those major tasks set forth in Section 1 in your master
 2  job description.  Analysis is important to be -- analytical
 3  abilities are important to be able to successfully perform
 4  those tasks; is that correct?
 5  A.  That's correct.
 6  Q.  And the final column is labeled, "In-basket Modules."  Can
 7  you please explain for me what is in this column?
 8  A.  This is basically the situations which represented the
 9  testees, which indicates the type of issues they had to deal
10  with.
11           For example, case reports had to be reviewed and
12  analyzed.  Actual reports which follow the exact forms which
13  are used by the Chicago police sergeants.
14  Q.  Okay.
15           And everything in your in-basket simulation was linked
16  back to your master job description; is that correct?
17  A.  That's correct.
18  Q.  Okay.
19           What is table -- what is the table that's labeled
20  "L-2"?  It's entitled, "Linkages Between In-basket Exercise,
21  Major Work Behaviors and Three Dimensions Tapped by the
22  In-basket Simulation Exercise"?
23  A.  It's just a summary, basically, of the exercise.  For
24  example, case reports, again, the major work behaviors and the
25  dimensions.
                                       Barrett - cross
                                                              203
 1  Q.  So, it's, again, showing that these three -- these parts of
 2  your exercise, part of the parts of the simulation, are linked
 3  back to the master job description?
 4  A.  Yes.
 5  Q.  Okay.
 6           And Table L-3, which is entitled, "In-basket
 7  Simulation Questions Tapped by Dimension and Module," can you
 8  explain for me the information that's contained in Chart L-3 --
 9  or Table L-3?
10  A.  This just links the actual test items.  We had 60 items on
11  the in-basket.  It links it very specifically to the dimension
12  and the actual exercise which was conducted.  So, you can see
13  that, in essence, there were three dimensions and 20 items for
14  each of the dimensions.
15           You can see, for example, the first module said
16  "Vehicle Accident," where there is an actual paperwork on a
17  vehicle accident which the testee had to make decisions about.
18  And there were -- Question 36, for example, related that
19  vehicle accident.
20  Q.  Did you also create a similar linkage chart for the oral
21  briefing exercise?
22  A.  Yes.
23  Q.  Let me direct your attention to Appendix O of your report.
24           MS. GLINK:  I will give the Court a second to get
25  there.
                                       Barrett - cross
                                                              204
 1           THE COURT:  I have it.
 2           MS. GLINK:  Your Honor, do you have the --
 3           THE COURT:  I have it.  I need a magnifying glass, but
 4  go ahead.
 5           (Laughter.)
 6  BY MS. GLINK:
 7  Q.  Can you briefly describe -- this is the linkage chart that
 8  you created for the oral briefing exercise?
 9  A.  Yes.
10  Q.  And can you briefly describe, in general, the information
11  contained in this chart?
12  A.  Again, it's very similar to the other charts.  We are just
13  looking at the dimensions.  And we see there's analysis,
14  organization and oral communication are important dimensions.
15  And we see that -- I wish I could read it, also.  I can't read
16  it.  But it describes the definition, the ability, again, the
17  major work behaviors and our rationale for testing this
18  dimension.
19  Q.  And those are the same columns and information that were
20  contained that we've already gone through with the in-basket?
21  A.  Yes.
22  Q.  So, again, you ensured that the purpose -- what was the
23  purpose of creating this chart?
24  A.  Again, the purpose is just a rational way to show that what
25  we are doing is not arbitrary.  It is part of the content of
                                       Barrett - cross
                                                              205
 1  the job of a Chicago police sergeant; that we are tapping
 2  relevant dimensions of the police sergeant's job.
 3  Q.  And, in this case, in the oral case, your dimensions that
 4  you're tapping are analysis, organization and oral
 5  communication; is that correct?
 6  A.  Yes.
 7  Q.  Do you recall testifying yesterday that the written job
 8  knowledge test did not directly tap the tasks set forth in
 9  Section 1-E of your master job description?
10  A.  Yes, I do.
11  Q.  Let me direct you back to Section 1-E of that master job
12  description.  Can you read into the record what Section 1-E is,
13  what tasks are set forth in Section 1-E of your master job
14  description?
15  A.  "Participates in community meetings and activities,
16  different from community interactions while on patrol; attends
17  planned events where police participation is requested for
18  public relations purposes in the district or sector."
19  Q.  Now, are these tasks tapped by your oral briefing exercise?
20  A.  Yes.
21  Q.  And let me direct you to the third column on the bottom
22  under "Oral Communication."  Can you read for me what's
23  contained in that box?
24  A.  I'm sorry, I'm not --
25  Q.  Back on -- excuse me, Appendix O, under Dimension 3, "Oral
                                       Barrett - cross
                                                              206
 1  Communication"?
 2  A.  Where are you now?
 3  Q.  Can you read for me the column -- under the column labeled,
 4  "Ability," under Section 3, "Oral Communication," can you read
 5  for me what's listed there?
 6  A.  My copy is very indistinct, but it looks like, "Oral
 7  communication ability to interact and direct officers" -- I
 8  really can't -- it's too indistinct for me to --
 9           THE COURT:  Are we on Page O-2 --
10           THE WITNESS:  O-2, yes.
11           MS. GLINK:  O-2.
12           THE COURT:  3, "Oral Communication Ability"?
13  BY MS. GLINK:
14  Q.  Let me give you my copy and see if you can read that more
15  clearly.
16           THE COURT:  I think I can read it, too.
17           (Document tendered.)
18  BY THE WITNESS:
19  A.  "Oral communication ability to direct and instruct
20  officers, communicate with peers, communicate with the public,
21  and inform superior officers of activities, ability to transmit
22  information in a verbal form that is clearly understood at an
23  appropriate rate of speech, and using proper terminology."
24  BY MS. GLINK:
25  Q.  Thank you.
                                      Barrett - redirect
                                                              207
 1           MS. GLINK:  I have nothing further, your Honor.
 2           THE COURT:  All right.
 3           Any re-adverse?
 4           MR. FLAXMAN:  Thank you.
 5                       REDIRECT EXAMINATION
 6  BY MR. FLAXMAN:
 7  Q.  Am I correct that what you said on redirect or direct was
 8  that, of the people who were selected to go on to the oral
 9  interview after taking the written job knowledge test and the
10  in-basket test, only 1400 were actually mathematically capable
11  of getting into the top 500?
12           MS. GLINK:  Your Honor, I object to the form of the
13  question.  I believe he's mischaracterizing the testimony
14  that's been before this Court.
15           THE COURT:  If you are relating to what he testified
16  to today, I do not think 1400 is the right figure.
17  BY MR. FLAXMAN:
18  Q.  Well, you told us that --
19           THE COURT:  Why do you not state it in a more general
20  way.
21           MR. FLAXMAN:  Okay.
22  BY MR. FLAXMAN:
23  Q.  You took the people with the highest scores on the written
24  job knowledge test and the in-basket test, and you took about
25  2200 of those to go on to the oral test; is that right?
                                      Barrett - redirect
                                                              208
 1  A.  As I recall, 2,044 were invited to go on.  I believe 1937
 2  actually appeared at the oral.
 3  Q.  Now, of that 1937, there was some smaller number that you
 4  later determined, did you not, that was mathematically capable
 5  of getting into the top 500?
 6  A.  I mean, later on, after the fact?
 7  Q.  After the fact, when you had all the data and you analyzed
 8  it?
 9  A.  As I recall, there was something that no one -- the bottom
10  scores would not have been able to go on for sure, yes.
11  Q.  And of the top -- when you say "bottom scores," you mean,
12  the bottom scores of those 1937; is that right?
13  A.  Well, I'm getting confused because I'm not sure.
14  Q.  Okay.
15           You took 1937 people who had the highest scores on the
16  written job knowledge test and the in-basket test and they took
17  the oral test; is that right?
18  A.  Yes, the top 1937 people took all three components.
19  Q.  Of that 1937, how many actually, when you analyzed all the
20  data, had a chance to be in the top 500?
21  A.  I don't recall.
22  Q.  It was less than 1937, wasn't it?
23  A.  Yes, I'm sure it was.
24  Q.  And it was less than a 1500, wasn't it?
25  A.  I assume so, yes.
                                      Barrett - redirect
                                                              209
 1  Q.  Okay.
 2           It was about 1200; is that right?
 3  A.  It could be -- yes, I think you're right, because I think
 4  there's 700 or some -- yes, it's probably true.
 5  Q.  So, in actuality, what you did was to set a passing score
 6  for the written job knowledge test and the in-basket test of
 7  the -- the 1200 highest scorers would have a chance to be
 8  promoted?
 9  A.  We didn't set a passing score in the traditional sense.  It
10  was only done for administrative convenience in terms of our
11  2,044.
12  Q.  Well, operationally, did it have the same effect as a
13  passing score?
14  A.  What do you mean "operationally"?
15  Q.  Well, I mean, if you weren't in the top 1200, you didn't
16  have any chance of being promoted in the top 500; is that
17  right?
18  A.  Well, after the fact, you're saying that administratively
19  we could go back and look and see what actually occurred, this
20  is probably true, yes.
21  Q.  Now, of the top 1200, you don't have any empirical data to
22  show that, if you're lower than the top 1200 on the written job
23  knowledge and the in-basket test, you're not capable of
24  performing as a sergeant; is that right?
25  A.  Are you asking if I have done an empirical criterion study
                                      Barrett - redirect
                                                              210
 1  of the top 1200 people?
 2  Q.  I'm asking you if you have any empirical data to support a
 3  decision to take the top 1200 scorers on the written job
 4  knowledge test and the in-basket test and say, "These are the
 5  people who are best qualified to be sergeants"?
 6  A.  We have a lot of data information from past empirical
 7  studies.  If empirical, you mean, criterion-related, we have a
 8  problem about how you define "empirical."
 9  Q.  Well, you've used the phrase "empirical," haven't you?
10  A.  I have used the phrase "empirical."  Other people have,
11  too, yes.
12  Q.  And you've used the phrase "empirical data," haven't you?
13  A.  Yes.
14  Q.  And, as a matter of fact, didn't you use that on Page 27 of
15  your affidavit, Defendant's Exhibit 5?
16  A.  I don't recall.
17  Q.  Well, do you remember writing in that affidavit that the
18  unit weighting approach is recommended for situations where
19  there is no empirical data on the criterion?  Do you remember
20  writing that?
21  A.  No, I don't recall writing those exact words.  It could
22  well be true, though, but I would have to inspect the document.
23  Q.  Well, I think you still have it in front of you.
24  A.  Okay.
25  Q.  Would you turn to Page 27, the second paragraph.
                                      Barrett - redirect
                                                              211
 1           THE COURT:  We are talking about Exhibit E now to
 2  this?
 3           MR. FLAXMAN:  That's correct.
 4           THE COURT:  You are at Page 27?
 5           MR. FLAXMAN:  That's correct.  Second sentence of the
 6  second paragraph.
 7  BY THE WITNESS:
 8  A.  Yes, this refers specifically to a criterion-related study.
 9  BY MR. FLAXMAN:
10  Q.  Okay.
11           Now, you don't have any empirical data to show that
12  the top 1200 on the written job knowledge test and the written
13  in-basket test are going to do better than the next 1200 if
14  promoted to sergeant; isn't that correct?
15  A.  If we're using empirical data strictly in the sense of a
16  criterion-related study dealing with police sergeants, a
17  particular concurrent study on these 1200 individuals, that's
18  correct.
19  Q.  Okay.
20  A.  But we do have empirical data from hundreds of other
21  studies dealing with job knowledge tests and other types of
22  tests, which indicate that there is a positive correlation
23  between test scores and job performance.
24  Q.  Now, these other studies, these other studies, in your
25  view, show that general cognitive ability tests predict job
                                      Barrett - redirect
                                                              212
 1  performance; isn't that right?
 2  A.  Yes.  There are many studies which do show that general
 3  cognitive ability tests do predict job performance.
 4  Q.  And you relied upon that belief in the work that you did
 5  for the City of Chicago; isn't that right?
 6  A.  No.
 7  Q.  You didn't -- did you put that out of your head when you
 8  were working for the City of Chicago?
 9  A.  I didn't put it out of my head.  But I did not rely upon
10  that information in constructing the job knowledge tests, the
11  in-basket simulation or the oral briefing.
12  Q.  Now, this -- the linkages that you were looking at for the
13  oral test and the in-basket test, those were something called
14  judgmental linkages; is that right?
15  A.  Yes.
16  Q.  That somebody made a judgment about whether something
17  relates to a different part of a job description; is that
18  right?
19  A.  That's correct.
20  Q.  There's no empirical data for those judgmental decisions;
21  is that right?
22  A.  Well, again, it's how you define "empirical."  Professor
23  Jencks, in his deposition, for example, defined "empirical" as
24  a process where you can reproduce information in a consistent
25  fashion and it would be possible, for example, to go back; and,
                                      Barrett - redirect
                                                              213
 1  so, if someone else would take the same information and
 2  reproduce what we have done and agree or disagree.
 3  Q.  Okay.
 4           You don't have any of that kind of data for this test,
 5  do you?
 6  A.  Well, we have already conducted our analysis.  It would be
 7  for you, it seems to me, to agree or disagree.
 8  Q.  Now, this exhibit, this affidavit, Defendant's Exhibit 5,
 9  was that prepared on or about March 3rd of 1996?
10  A.  Yes.
11  Q.  That was prepared specifically in response to this
12  litigation; is that right?
13  A.  Yes and no.  In other words, some had been prepared before
14  this.  Some has been taken out of the -- our report on
15  development administration of a promotion process for the job
16  of Chicago police sergeant dated December 13th, 1994.
17  Q.  Well, that weighting review that's Appendix B, Page 26 and
18  27 and 28, does that appear in the report that you gave to the
19  City of Chicago in December of 1994?
20  A.  No, it does not.
21  Q.  As a matter of fact, there's nothing of that report you did
22  in December of 1994 that indicated you were adopting a unit
23  weighting approach because there was no empirical data on the
24  criterion; is that right?
25  A.  I don't recall those exact words in the report, no.
                                      Barrett - redirect
                                                              214
 1  Q.  And the report December of '94, that was after the first
 2  promotions had been made to sergeant; is that right?
 3  A.  I don't recall the date of the first promotion to sergeant.
 4  Q.  Well, if the first promotions were made in August, then
 5  your report was given to the City after August of 1994; is that
 6  right?
 7  A.  Yes.
 8  Q.  And that report that you gave to the City in December of
 9  1994, that was after this lawsuit had been filed; is that
10  right?
11  A.  I assume so.  I don't know the exact date the lawsuit was
12  filed.
13  Q.  Well, did you learn that this lawsuit had been filed
14  shortly after it had been filed?
15  A.  I assume I did, yes.
16  Q.  And you were faxed a copy of the complaint, weren't you?
17  A.  I assume I was, yes.
18  Q.  And you had conversations with lawyers from the City of
19  Chicago about the lawsuit; is that right?
20  A.  I probably did, yes.
21  Q.  And after those conversations, you completed your report,
22  this Defendant's Exhibit D; is that right?
23  A.  That's correct.
24  Q.  And when you completed that report, you talked about how
25  you reached your decision to weight each component of the test
                                      Barrett - redirect
                                                              215
 1  equally; is that right?
 2  A.  I may have.  I don't recall.
 3  Q.  Well, do you remember there's an appendix in that report --
 4  I think it's Appendix R, which is entitled, "Weighting
 5  Rationale"?
 6  A.  Yes, it's probably our computer simulation.
 7  Q.  Okay.
 8           That's the only explanation in the report that you
 9  gave to the City in December of '94 for your decision to choose
10  the unit weighting approach; isn't that right?
11  A.  I don't recall.
12  Q.  Well, do you have the exhibit -- do you have the report in
13  front of you?
14  A.  Which report are you referring to?
15  Q.  Defendant's Exhibit D, as in David.
16           Now, if you turn to Roman III of that, there's an
17  Appendix.  There's a list of appendices, and Appendix R is
18  Report of Rationale for Weighting Procedure Used.  Do you see
19  that?
20  A.  Yes.
21  Q.  And, then, Appendix R talks about a meta-analysis and
22  computer simulations and some other work; is that right?
23  A.  That's correct.
24  Q.  There's nothing in Appendix R about the literature that
25  supports the unit weighting approach, is there?
                                      Barrett - redirect
                                                              216
 1  A.  No, I don't believe there is.
 2  Q.  And there's nothing in Appendix R about the job analysis
 3  supports the unit weighting approach; is that right?
 4  A.  No, I don't believe there is.
 5  Q.  And, as a matter of fact, there's nothing in -- anywhere in
 6  Defendant's Exhibit D about weighting other than what's in
 7  Appendix R, which is that computer simulation; is that right?
 8  A.  That may be true.
 9  Q.  Now, have you ever recommended that there be further
10  research to gather concrete data about considerations that are
11  used in employment decisions?
12  A.  I'm not sure.  It's sort of a general question.  Again,
13  I've written over 130 articles in this area.  And, so, it's
14  hard for me to recall what I may or may not have said.
15  Q.  Well, did you ever recommend to the City of Chicago that
16  further work be done to gather concrete data regarding the link
17  between scores on your test and performance as a sergeant?
18  A.  You mean, did I recommend a criterion-related study for
19  police sergeant?
20  Q.  No.  Did you ever recommend that any work be done by the
21  City of Chicago or for the City of Chicago to gather more
22  concrete data regarding the link between scores on your test
23  and ability to perform as a sergeant?  Did you ever recommend
24  that?
25  A.  I don't recall if I did or did not.
                                      Barrett - redirect
                                                              217
 1  Q.  Did you ever recommend that the written job knowledge test
 2  be administered to a sample of incumbent sergeants to see how
 3  well they did on it?
 4  A.  I would -- I don't think I would recommend that.
 5  Q.  Did you ever recommend that the in-basket test be given to
 6  a sample of incumbent sergeants to see how well they do on it?
 7  A.  I don't think I ever recommended that.
 8  Q.  Did you ever recommend that the oral examination be given
 9  to a group of incumbent sergeants to see how well they do on
10  it?
11  A.  I don't think I'd ever recommend that.
12  Q.  Now, the oral exam on the sergeants, is that the same
13  format of test as the oral exam on the lieutenant's test that
14  you did for the City?
15  A.  If you --
16           MS. GLINK:  Objection, your Honor.  Assumes facts not
17  in evidence.
18  BY MR. FLAXMAN:
19  Q.  Did you also develop --
20           MR. FLAXMAN:  I will withdraw the question.
21           THE COURT:  Okay.
22  BY MR. FLAXMAN:
23  Q.  Did you also develop the lieutenant's test for the City of
24  Chicago?
25  A.  Yes, I did.
                                      Barrett - redirect
                                                              218
 1  Q.  And that was used for promotion to the position of
 2  lieutenant; is that right?
 3  A.  Yes, that's correct.
 4  Q.  And did that test include an oral test in the same format
 5  as the oral test used in the sergeant's promotional test?
 6  A.  Yes, it was a similar format.
 7  Q.  And was the -- was there an in-basket component to the
 8  lieutenant's test?
 9  A.  Yes, there was.
10  Q.  And was that a similar format to the in-basket component of
11  the sergeant's test?
12  A.  Yes.
13  Q.  Could you tell us why it is that you did not recommend to
14  the City of Chicago that there be further research to offer
15  more concrete data regarding the link between scores on your
16  test and performance as a sergeant?
17  A.  Again, I assume you're referring to a criterion-related
18  study; and, certainly, we considered the possibility of a
19  concurrent study.  A concurrent validation study would involve
20  giving the sergeant's test -- test battery, all three
21  components to incumbent sergeants and, at the same time,
22  obtaining some measure of job performance for these sergeants.
23  There are a number of reasons why that was not a feasible
24  approach.
25           First, if we were to give the three test battery of
                                      Barrett - redirect
                                                              219
 1  three components to incumbent sergeants, say, 200 sergeants,
 2  then the actual job knowledge test items and the actual items
 3  on the in-basket and the actual process for the oral would be
 4  revealed to these 200 incumbent sergeants.  And we know that
 5  when you give a test like this, it can be reproduced.  So, the
 6  confidentiality of the test process will be compromised.  In
 7  other words, the people who would be going to take this test in
 8  the future would know the exact items and, thereby, destroy any
 9  validity of that testing process.  So, for that reason alone, I
10  would not recommend a concurrent validation study.
11           A second reason we did not -- I would not recommend
12  that approach is that it has been my experience in working with
13  safety forces that supervisors are very reluctant to give
14  performance appraisal ratings because they are worried about
15  being called biased or unfair.
16  Q.  Did you ever gather any concrete data to see whether that
17  generalized belief was applicable to the police department of
18  the City of Chicago?
19  A.  Yes, we had some very concrete data, as a matter of fact,
20  concerning that issue.  Shortly after we gave the sergeant's
21  job knowledge test, the test was reproduced and all 150 items
22  or some semblance of them became available.  In fact, it became
23  available to the Inspector General of the City of Chicago.
24           This resulted in an investigation to determine if
25  whether or not the job knowledge test had somehow been
                                      Barrett - redirect
                                                              220
 1  compromised and leaked to the testees before the test was
 2  given.  A complete investigation was conducted by the inspector
 3  general.  And, in fact, it was determined or decided that there
 4  was no compromise of the testing process.  What had occurred
 5  was that the testees, after taking the test, had been able to
 6  reproduce in a fairly good fashion the 150 items or some
 7  resemblance of those 150 items.
 8           So, this is very concrete evidence that we would not
 9  want to conduct a concurrent validation study using the actual
10  police sergeants in the City of Chicago because we know there
11  would be a high probability that the test would be reproduced,
12  and, therefore, the validity of the testing process would be
13  destroyed.
14  Q.  Now, did you ever think about giving the test to the
15  sergeants at the same time as you were giving the test to the
16  police officers?
17  A.  I fail to understand the value of that sort of process.
18  Q.  Okay.
19           But you never thought about that, did you?
20  A.  I thought about it, but I can't understand the value of
21  that process.
22  Q.  Did you ever consider giving the test to the sergeants
23  after the test had been given to the police officers?
24  A.  I have thought about it; but, again, I don't understand the
25  value of that process.
                                      Barrett - redirect
                                                              221
 1  Q.  Okay.
 2           Did you ever -- well, are you telling us that the
 3  test, as far as you're concerned, is no longer secret; it's a
 4  public record that's been -- that its confidentiality has been
 5  compromised?
 6  A.  Well, I think it's even worse than that.  Its
 7  confidentiality has been compromised for some people.  Some
 8  group of people, for example, has reproduced the job knowledge
 9  test.  We don't know who those people are.
10  Q.  So --
11  A.  So, it's some, not everybody has access to it.  Some people
12  have, obviously, have reproduced a part of the job knowledge
13  test.
14  Q.  So, would you recommend to the City that they use that job
15  knowledge test, again, in the future?
16  A.  No, I would not recommend to the City that they would use
17  that same job knowledge test in the future.
18  Q.  Okay.
19           Now, you also talked about, in this concurrent
20  criterion validity study, about performance ratings.  And you
21  said, in your experience, that people don't like to give
22  performance ratings.
23           Did you ever gather any concrete data from the police
24  department or the City of Chicago about its ability or lack of
25  ability to rate how its incumbent police officers are
                                      Barrett - redirect
                                                              222
 1  performing their job?
 2  A.  No, I've never attempted to devise a performance appraisal
 3  device for police sergeants in the City of Chicago and
 4  determine whether or not the superior officers would be willing
 5  or not to rate the incumbent police sergeants.
 6  Q.  At some point, did you learn that there is in existence in
 7  the police department of the City of Chicago a formal mechanism
 8  for identifying police officers who are performing their job at
 9  an exceptional level of competence?
10  A.  Yes.
11  Q.  And did you ever consider using those people who had been
12  selected through that system performing their job at an
13  exceptional level of competence and administering your test to
14  them?
15           MS. GLINK:  Objection, your Honor, to the extent that
16  it has not been established what system he's talking about at
17  this point.
18           THE COURT:  Yes, it seems to me it is so vague.
19           MR. FLAXMAN:  All right.
20           THE COURT:  At least I will permit you to proceed in
21  this same subject matter area, but it seems to me this
22  particular question is very difficult for the witness to
23  understand to be able to answer intelligently.
24  BY MR. FLAXMAN:
25  Q.  At some point you learned that there's a merit selection
                                      Barrett - redirect
                                                              223
 1  system in existence in the City of Chicago for promotion to
 2  detective; is that right?
 3  A.  Yes.  In general, I've heard that there is a mechanism like
 4  this.
 5  Q.  And did you also learn that there's a merit selection
 6  system which had been intended to be used in 20 percent of the
 7  promotions to lieutenant?
 8  A.  Yes, I have learned that that was a process which was not
 9  accepted by a court.
10  Q.  And did you ever consider administering your test to those
11  persons who had been identified through the merit selection
12  process for promotion to see how well they did on these --
13           MS. GLINK:  I'm going to object, your Honor.  Counsel
14  hasn't established when he found out about this selection
15  process and whether it was even in existence --
16           THE COURT:  Yes.
17           MS. GLINK:  -- at the time that Dr. Barrett --
18           THE COURT:  I will sustain the objection for lack of
19  foundation as to the relevancy of these questions.
20           MR. FLAXMAN:  May I have just a minute, your Honor?
21           THE COURT:  Yes.
22           (Brief pause.)
23           THE COURT:  One thing that is not clear to me is
24  whether your questions are designed to relate to what was done
25  in preparation for preparing the existing test or whether you
                                      Barrett - redirect
                                                              224
 1  are asking him why he did not do all sorts of things to seek to
 2  prove the validity of the test after the test had been taken.
 3  It seems to me those are two different areas; and, to
 4  intermingle them, it seems to me, is misleading.
 5           MR. FLAXMAN:  I don't want to be misleading or
 6  confusing and --
 7           THE COURT:  Did you understand the point that I was
 8  making, though?
 9           MR. FLAXMAN:  I understood the point, your Honor, and
10  I'm not trying to be misleading.  It might be confusing, but
11  misleading is not productive.
12  BY MR. FLAXMAN:
13  Q.  Let's go back to March of 1993, when Barrett & Associates
14  submitted its proposal to develop the sergeant's test for the
15  City of Chicago.
16           At that time, was it your plan, Barrett & Associates'
17  plan, that there would be no minimal -- no cutoff point --
18           MR. FLAXMAN:  Strike that.
19  BY MR. FLAXMAN:
20  Q.  At that time, back in March of 1993, was there a -- was
21  part of the proposal to do a concurrent validation study?
22  A.  I don't recall ever proposing that.
23  Q.  Okay.
24           Did you ever discuss doing that with the City of
25  Chicago back in March of 1993?
                                      Barrett - redirect
                                                              225
 1  A.  I don't recall discussing -- I shouldn't say -- I just
 2  don't recall.  We may have, but I don't recall it.
 3  Q.  Well, when you were talking about identification of
 4  minimally competent persons in the written test development in
 5  the proposal, did that involve a concurrent validation study of
 6  administering the test to incumbents?
 7  A.  Well, again, I don't recall.  As I recall, you pointed out
 8  somewhere in an appendix to a contract, and, again, you have to
 9  show me what you are referring to.
10  Q.  Let me show you what's previously been marked as
11  Plaintiffs' Exhibit 12 and direct your attention to the page
12  numbered 17, which is Bates stamped number 50, and ask you to
13  look where it says -- under where it says, "Written Test
14  Development."
15           (Document tendered.)
16  BY MR. FLAXMAN:
17  Q.  Do you see that?
18  A.  Yes, I do.
19  Q.  Now, was that a reference to a concurrent validation study?
20  A.  No, it was not.
21  Q.  Well, how were you going to identify -- could I have it
22  back?
23  A.  Well, okay.
24           (Document tendered.)
25  BY MR. FLAXMAN:
                                      Barrett - redirect
                                                              226
 1  Q.  How were you going to identify the minimally competent
 2  people?
 3  A.  Well, again, I think in the body of the proposal, there is
 4  no mention of anything like that.  So, I don't know what it
 5  refers to in the sense of our project because it's not at all
 6  mentioned in our main body of our proposal.
 7           All we'd say is that I recall that we would take the
 8  top 2,000 people, I believe, on to the oral.
 9  Q.  Now, do you remember an article about the effects of age
10  stereotyping in a simulated interview that you co-authored back
11  in 1987?
12  A.  No, I don't recall the details of it.  I recall authoring
13  an article -- or author of an article like that.
14  Q.  You do or you don't?  I'm sorry.
15  A.  I'm sorry?
16  Q.  You do or you do not recall?
17  A.  I recall an article like that.  I don't recall the details
18  of the article.
19  Q.  Do you know someone named Bruce J. Avolia (phonetic)?
20  A.  Yes, I do.
21  Q.  Is he one of your former students?
22  A.  Yes.
23  Q.  And was he -- did you co-author an article with him?
24  A.  Yes, I did.
25  Q.  And do you remember in that article concluding that further
                                      Barrett - redirect
                                                              227
 1  research is needed to offer more concrete data regarding the
 2  link between chronological age and various aspects of job
 3  performance?
 4           MS. GLINK:  I'm going to object, your Honor, on the
 5  grounds of relevance.  This is an article written about age,
 6  not about promotions of police officers.
 7           THE COURT:  I am going to overrule the objection.
 8           It seems to me that it is related to the defendants.
 9  I mean, the plaintiffs' attempt to show that specific testing
10  is necessary to establish the validity of certain principles
11  that were used in preparing the test, and the fact that age is
12  not a factor in this particular case does not mean that does
13  not establish a principle that might relate to the case.  So,
14  on that rounded basis, I will overrule the objection and permit
15  him to proceed.
16           MS. GLINK:  I am going to ask, your Honor, that the
17  plaintiffs' counsel provide a copy of this article to
18  Dr. Barrett, so that he has a chance to look at it and refer to
19  it while Mr. Flaxman is questioning him on it.
20           THE COURT:  Well, if he is going to ask him about the
21  content, obviously, if the witness wishes to request -- review
22  the article, he has the right to do that.  And, similarly,
23  counsel should give opposing counsel a copy of the article, if
24  you have it.
25           MR. FLAXMAN:  I have one copy, Judge.
                                      Barrett - redirect
                                                              228
 1           THE COURT:  That is -- well, then we will take a break
 2  and let opposing counsel have a chance to look at it first
 3  before you proceed with your questions.
 4           MS. GLINK:  Thank you.
 5           THE COURT:  In fact, why do we not take a mid-morning
 6  break at this time, and we will try to hold it to ten minutes.
 7  Then we will go on to 12:30, we will take an hour break; and,
 8  then, we will resume and go until.
 9           MS. GLINK:  Your Honor, is there anybody in your
10  chambers who could make a couple copies, so that Dr. Barrett
11  could also review this during the break?
12           THE COURT:  How many pages do we have?
13           MS. GLINK:  It's not very long.  About ten,
14  approximately.
15           THE COURT:  I will ask Laurie here to assist and show
16  you where our -- we have a copy machine on this floor, so that
17  she will assist.
18           MR. FLAXMAN:  Okay.
19           THE COURT:  We will make -- how many copies, two,
20  anyway?  Three?
21           MS. GLINK:  One for the Court, one for us, I would
22  assume, and one for Dr. Barrett.
23           Thank you.
24           THE COURT:  All right.
25           We will take a short recess then at this time.
                                      Barrett - redirect
                                                              229
 1           (Whereupon, a recess was taken.)
 2           THE COURT:  Court is back in session.  Everybody
 3  please be seated.
 4           With the copying of the article, you may proceed now
 5  with --
 6           MR. FLAXMAN:  Okay.
 7           THE COURT:  -- relevant questions, anyway.
 8           MR. FLAXMAN:  All right.
 9           Let me just move away from the article for a moment.
10  BY MR. FLAXMAN:
11  Q.  Did you, when you prepared your proposal for the City of
12  Chicago, examine or know about something called the Report of a
13  Blue Ribbon Panel on Police Testing, Hiring and Promotion?
14  A.  I'm not sure of the exact time I knew about the Blue Ribbon
15  Panel of 1990 Report, but I know certainly before -- once we
16  started the project, I recall reviewing that report.
17  Q.  And did you try to follow the recommendations of the Blue
18  Ribbon Panel on police promotion?
19  A.  Yes.
20  Q.  Well, did you follow the recommendation of the Blue Ribbon
21  Panel that performance evaluations play a role in promotions?
22  A.  I'd have to read the exact section to know what you're
23  referring to.
24  Q.  Well, let me show you what I will mark as Plaintiffs'
25  Exhibit 60 and ask you to look at Page 11.
                                      Barrett - redirect
                                                              230
 1           MR. FLAXMAN: And I think we have a copy for the Court.
 2           (Document tendered to the Court.)
 3           THE COURT:  I take it the city has got a copy of this,
 4  as well?
 5           MS. PAPUSHKEWYCH:  Yes.
 6           THE COURT:  Okay.
 7           (Document tendered.)
 8  BY MR. FLAXMAN:
 9  Q.  Exhibit 60 is the Report of the Blue Ribbon Panel; is that
10  right?
11  A.  Yes.
12  Q.  And Page 11, there's a Paragraph 4, which has the fourth
13  recommendation about promotions; is that right?
14  A.  Yes.
15  Q.  And Paragraph 4 is a recommendation that performance
16  evaluations should play a role in promotions?
17  A.  Yes.
18  Q.  And, then, the next paragraph is that some way should
19  weight should also be given to the applicant's attendance,
20  medical and disciplinary records?
21  A.  Yes.
22  Q.  Your test doesn't give any weight to attendance, medical
23  and disciplinary records, does it?
24  A.  No, it does not.
25  Q.  And your test doesn't include -- doesn't give any role to
                                      Barrett - redirect
                                                              231
 1  performance evaluations; is that right?
 2  A.  That's correct.
 3  Q.  Now, did you ever become aware of the work that had been
 4  done for the City of Chicago by the consulting firm of
 5  Richardson, Bellows, Henry & Company?
 6  A.  I know that consulting firm, yes.
 7  Q.  Okay.
 8           Did you know that they did a concurrent validation
 9  study of its -- of a performance evaluation system with
10  incumbent Chicago police officers?
11  A.  I don't recall reading a report like that.
12  Q.  Well, do you see on -- did you read -- when you read this
13  Blue Ribbon Panel Report for the first time, did you see where
14  it says on Pages 11 to 12, the reference to Richardson,
15  Bellows, Henry & Company administering an instrument to current
16  officers who would be taking the test for validation purposes?
17  A.  Yes, I do see that.
18  Q.  Well, when you saw that and read that, you were aware that
19  at least one concurrent validation study had been performed for
20  the City of Chicago with respect to validating a test for
21  hiring police officers; is that right?
22  A.  It doesn't say that in this report.  They just mention
23  concurrent validation study.  I don't believe --
24  Q.  Well, it says that, "Current officers who would be taking
25  the test for validation purposes."  Do you see that at the top
                                      Barrett - redirect
                                                              232
 1  of Page 12?
 2  A.  Yes, I see those words, but it doesn't say the concurrent
 3  study.
 4  Q.  Well, okay.
 5           But it does say --
 6  A.  I have not reviewed any report of that study --
 7  Q.  Okay.
 8  A.  -- as far as I recall.  I don't recall reviewing a report
 9  of that study.
10  Q.  So, as you sit here now, you don't know whether or not the
11  City of Chicago administered its entry-level examination to
12  current officers who took the test for validation purposes?
13  A.  I'm sorry.  Say that, again.
14  Q.  As you sit here now, do you or do you not know that the
15  City of Chicago used its entry-level test on current officers
16  who took the test for validation purposes?
17           MS. GLINK:  I object to the extent that it assumes
18  that that is, in fact, a true statement.
19           THE COURT:  I will sustain the objection as to the
20  form of the question, but not the subject matter.  But you are
21  referring to Exhibit G now as  --
22           MR. FLAXMAN:  No, this is --
23           THE COURT:  -- the test?
24           MR. FLAXMAN:  -- called Exhibit 60, Plaintiffs'
25  Exhibit 60.
                                      Barrett - redirect
                                                              233
 1           THE COURT:  Right.  No, no, but I am talking about the
 2  inner report as you have referred to.  At the top of Page 12,
 3  it refers to --
 4           MR. FLAXMAN:  Oh.
 5           THE COURT:  -- Exhibit G --
 6           MR. FLAXMAN:  That's correct.
 7           THE COURT:  -- as that evaluation record.  And you are
 8  asking a question as to whether this has been used, as I
 9  understand it?
10           MR. FLAXMAN:  Well, did he know that it was used is
11  what the question was.
12           MS. GLINK:  I, again, object to it the grounds that it
13  assumes a fact not in evidence.
14           THE COURT:  Well, this is something we will have to
15  deal with, admissibility of the exhibits that are being offered
16  and referred to here.  But it seems to me as long as the
17  question makes it clear you are referring to the knowledge that
18  he had prior to some specific time period, so we know in what
19  context it is, I will overrule the objection and permit you to
20  proceed.
21  BY MR. FLAXMAN:
22  Q.  Before you submitted your final report in December of 1994
23  to the City of Chicago, were you aware of this Blue Ribbon
24  Panel Report, Plaintiffs' Exhibit 60?
25  A.  Yes.
                                      Barrett - redirect
                                                              234
 1  Q.  And were you aware of the Blue Ribbon Panel Report before
 2  December of 1993 when the written test was administered?
 3  A.  Yes.
 4  Q.  And when you read the Blue Ribbon Report -- well, when you
 5  became aware of the Blue Ribbon Report, did you read it?
 6  A.  Yes.
 7  Q.  And did you read Page 11 and 12?
 8  A.  Yes.
 9  Q.  And when you read Page 11 and 12, did you read the sentence
10  that said that, "To evaluate the current officers who would be
11  taking the test for validation purposes"?
12  A.  It's a very ambiguous statement.  Yes, I read the
13  statement.
14  Q.  Well, when you read that statement, did you know that the
15  entry-level examination --
16           THE COURT:  I think it would be helpful for the record
17  if you read the entire question.
18           MR. FLAXMAN:  Okay.  Well, let me --
19           THE COURT:  I mean, the entire sentence starting on
20  Page 11, just so we get the context down.
21  BY MR. FLAXMAN:
22  Q.  Did you read this sentence:  "In conjunction with the
23  recent entry-level examination (the law enforcement candidate
24  record), the consulting firm of Richardson, Bellows, Henry &
25  Company (RBH) used a very interesting and sensitive performance
                                      Barrett - redirect
                                                              235
 1  evaluation instrument to evaluate the current officers who
 2  would be taking the test for validation purposes."
 3           Did you read that sentence?
 4  A.  Yes.
 5  Q.  And when you read that sentence, did you learn that the law
 6  enforcement candidate record, the entry-level examination, was
 7  being administered to current officers who would be taking the
 8  test for validation purposes?
 9  A.  No, I didn't understand it in that context.  I wasn't sure
10  what it meant.
11  Q.  Well, did you ask anybody at the City what it meant?
12  A.  No.
13  Q.  Did you ask anybody on the Blue Ribbon Panel what it meant?
14  A.  No.
15  Q.  You didn't administer your test for validation purposes to
16  any incumbent police sergeants, did you?
17  A.  No, I did not.
18  Q.  Now, during the break, did you have a chance to review that
19  article that's been marked as Plaintiffs' Exhibit 58?
20  A.  No, I didn't have a chance to review the whole article.
21  Q.  Well, did you have a chance to review Page 62, the
22  paragraph before, "Potential Limitations"?
23  A.  Which paragraph do you want me to review?
24  Q.  The paragraph that starts, "The inconsistencies that
25  presently exist"; do you see that?
                                      Barrett - redirect
                                                              236
 1  A.  Yes, I see.
 2  Q.  Could you review that paragraph for us.
 3           (Brief pause.)
 4  BY THE WITNESS:
 5  A.  Okay.
 6  BY MR. FLAXMAN:
 7  Q.  Now, this Plaintiffs' Exhibit 58, I think, is an article
 8  that appeared in a referee journal; is that right?
 9  A.  Yes, it did.
10  Q.  And you are the co-author of that article; is that right?
11  A.  Yes.
12  Q.  And for an article to appear in a referee journal, does it
13  mean that your peers in the field of psychology have reviewed
14  the article and approved it for publication?
15  A.  Yes.
16  Q.  And in that article, when you -- is it correct --
17           THE COURT:  Can you read the date of that?
18           MR. FLAXMAN:  I'm sorry.
19  BY MR. FLAXMAN:
20  Q.  Is it correct that that article appears in a journal
21  called, "Psychology and Aging," in March 1987?
22  A.  Yes.
23  Q.  And your article appears starting at Page 56; is that
24  right?
25  A.  Yes.
                                      Barrett - redirect
                                                              237
 1  Q.  And did you and your co-author write in that article that,
 2  "Further research is needed to offer more concrete data
 3  regarding the link between chronological age and various
 4  aspects of job performance"?
 5  A.  Yes.
 6  Q.  And when you wrote that or co-wrote that sentence, was it
 7  correct?
 8  A.  Correct in the sense -- yes, it's a correct statement.
 9  Q.  Okay.
10           And is it also correct that further research is needed
11  to offer more concrete data regarding the link between scores
12  on the sergeant's promotional test and aspects of job
13  performance as a police sergeant?
14  A.  No.
15  Q.  There is no data now; isn't that correct?
16  A.  I'm confused.  I don't see the analogy.  I'm sorry.
17  Q.  Okay.
18           Well, do you have any --
19           THE COURT:  Your question -- this is
20  cross-examination.  It's adverse examination.  But it cannot --
21  your question cannot be misleading as to what he has testified
22  to.  He has testified to the fact that there are over a hundred
23  tests that he is aware of with respect to the validation of a
24  content aspect test that we are dealing with here.  And, so,
25  what you are asking -- what your question, I think, was
                                      Barrett - recross
                                                              238
 1  intended to be that there has been no testing of the Chicago
 2  Police Department --
 3           MR. FLAXMAN:  That's what I --
 4           THE COURT:  -- with respect to a content aspect test.
 5           MR. FLAXMAN:  That's --
 6           THE COURT:  Okay.  And I take it the answer is "No" to
 7  that?
 8           THE WITNESS:  Yes, the answer is "No."
 9           MR. FLAXMAN:  You just saved me.  Thank you.  I have
10  nothing further.
11           MS. GLINK:  I just have a couple of questions.
12                       RECROSS EXAMINATION
13  BY MS. GLINK:
14  Q.  Dr. Barrett, I am just going to draw your attention back to
15  the Blue Ribbon Report that you were just referring to, and I'm
16  going to call your attention to Page 11 and 12.  That would be
17  Paragraph 4 of that report.
18  A.  Yes.
19  Q.  Can you read for me the second full paragraph that begins
20  with "We recommend" on Page 12 of that report?
21  A.  "We recommend hiring a nationally-recognized police
22  consultant to develop a fair performance evaluation procedure
23  (perhaps using the RBH performance evaluation instrument) and
24  to consult generally on the promotion process.  We have
25  consulted with a Carroll Buracker, the former chief of police
                                      Barrett - recross
                                                              239
 1  of Fairfax, Virginia and head of the consulting firm, Carroll
 2  Buracker & Associates, and were very impressed with him and his
 3  firm.  They have developed promotional processes (including
 4  performance evaluation measures) for other large police
 5  departments, and could do the same for Chicago."
 6  Q.  At the time that you were -- Dr. Barrett, were you hired to
 7  develop this fair promotion evaluation procedure that the Blue
 8  Ribbon Panel is referring to on Page 12?
 9  A.  Yes.
10  Q.  And what do you mean by that?
11  A.  A fair --
12  Q.  Were you hired to develop a performance evaluation
13  procedure?
14  A.  No.
15  Q.  What were you hired by the City of Chicago to develop?
16  A.  A promotional examination for police sergeant.
17  Q.  And at the time that you developed your promotional
18  examination for police sergeant, was there in place a
19  performance evaluation procedure like the one recommended by
20  the Blue Ribbon Panel?
21  A.  As far as I know, there was not.
22  Q.  Do you know whether the City has developed such a promotion
23  evaluation system today?
24  A.  As far as I know, they have not.
25  Q.  And, in your opinion, are there any problems associated
                                      Barrett - recross
                                                              240
 1  with developing a performance evaluation procedure like the one
 2  referred to in the Blue Ribbon Panel?
 3  A.  Yes, there are many major problems.
 4  Q.  And what are those problems?
 5  A.  Well, the first problem with any performance appraisal
 6  system is the issue of reliability.  They tend to have low
 7  reliability.
 8           A second problem, of course, is perceived fairness.
 9  When you have a supervisor making judgments about subordinates,
10  there is always the issue of subjectivity, friendship, and
11  other factors entering into the process.
12           In fact, I have personal experience of attempting to
13  develop performance appraisal techniques for police sergeants.
14  And while I was very successful in the pilot stages of
15  developing a reliable and valid performance appraisal
16  technique, once it was learned that it would actually be used
17  to help promote from patrol officer to sergeant, the process
18  fell apart because the supervisors were reluctant to
19  differentiate among individuals because they know that it would
20  be revealed who they rated higher.  And, so, we had to abandon
21  that process.
22  Q.  And for which jurisdiction did you attempt to develop such
23  a performance appraisal system?
24  A.  The City of Akron's police department.
25           MS. GLINK:  Can you give me one minute, your Honor?
                                      Barrett - recross
                                                              241
 1           THE COURT:  Yes.
 2  BY MS. GLINK:
 3  Q.  Dr. Barrett, in your opinion, is there a difference between
 4  conducting a concurrent validation study for a police entrance
 5  level versus for a concurrent validation study for a police
 6  promotional rank?
 7  A.  Yes.
 8  Q.  And what are the differences?
 9  A.  Well, one, it's always a different level in the
10  organization; and, for a police entrance examination, you would
11  develop a test which was quite different and the process would
12  be quite different in terms of the type of test you could
13  develop.
14           For example, for a police entrance examination, you
15  could not use the job knowledge test because a job knowledge
16  test is information which was learned after you are hired as a
17  patrol officer, and you study for it to be promoted to police
18  sergeant.  So, you have to use a different type of test
19  entirely in that context.
20           Also, there's the issue of -- confidentiality is
21  somewhat different because in the case of the concurrent study
22  for police sergeants, you would have to use incumbent police
23  sergeants who have friends who are police patrol officers who
24  they would want to give information to.
25           Conversely, the problem is still there, but it's not
                                      Barrett - recross
                                                              242
 1  quite as bad, for police entrants because you have a broader
 2  group, in other words, and your test is somewhat different in
 3  terms of the type of test you are going to be giving.
 4  Q.  Dr. Barrett, do the uniform guidelines on employee
 5  selection procedure recognize more than one type of validation
 6  of a promotional examination?
 7           MR. FLAXMAN:  Objection.  This is beyond the scope of
 8  re-adverse.
 9           THE COURT:  Well, it seems to me it deals with the
10  general subject matter.  He is going to be called, again, to
11  testify, as I understand it.  So, it seems to me that -- and he
12  is being questioned as though on redirect.  So, I will overrule
13  the objection and permit you to proceed.
14           MS. GLINK:  Well, I'm happy to cover this material in
15  our direct.  I just am concerned we won't get to it this
16  afternoon.
17           THE COURT:  Well, I think one of the problems is that
18  the other expert is not going to be available after today, as I
19  understand it.  And I do not think that is the same problem.
20           MS. GLINK:  Dr. Barrett has to leave by noon tomorrow.
21           THE COURT:  All right.
22           MS. GLINK:  Why don't we move on.  I will save this
23  and we can go into this on direct.
24           THE COURT:  All right.
25           MS. GLINK:  I have nothing further.
                                      Barrett - recross
                                                              243
 1           THE COURT:  Any additional questions?
 2           MR. FLAXMAN:  No.
 3           THE COURT:  All right.  That will conclude your
 4  testimony, then, at this time.
 5           (Witness excused.)
 6           THE COURT:  And we can call the next witness, then.
 7           MR. FLAXMAN:  Our next witness, your Honor, is
 8  Christopher Jencks.
 9           THE COURT:  All right.  Sir, if you will stand and
10  raise your right-hand.
11          CHRISTOPHER JENCKS, PLAINTIFF'S WITNESS, SWORN
12           THE COURT:  You may fire when ready.
13           MR. FLAXMAN:  Thank you, Judge.
14                        DIRECT EXAMINATION
15  BY MR. FLAXMAN:
16  Q.  Could you state your full name and spell your last name,
17  please?
18  A.  My name is Christopher Jencks, spelled J-e-n-c-k-s.
19  Q.  And what's your business or occupation?
20  A.  I'm a professor of sociology and urban affairs at
21  Northwestern University.
22  Q.  Let me show you what's been marked as Plaintiffs' Exhibit
23  59.
24           (Document tendered.)
25           MR. FLAXMAN:  And I have a copy for your Honor and for
                                       Jencks - direct
                                                              244
 1  --
 2           (Document tendered to the Court.)
 3  BY MR. FLAXMAN:
 4  Q.  Is Plaintiffs' Exhibit 59 a copy of your current curriculum
 5  vitae?
 6  A.  Since it's dated June of 1995, I guess the answer is not
 7  quite current.
 8  Q.  As of June, 1995 --
 9  A.  Yes.
10  Q.  -- was it your curriculum vitae?
11           And does this list your books and reports and chapters
12  in books and articles in journals?
13  A.  It does.
14  Q.  Okay.
15           What's your -- do you have an area of concentration or
16  specialty?
17  A.  The principal areas in which I've done research over the
18  years are race and economic inequality, education and testing.
19  Q.  Now, is it accurate to refer to you as a quantitative
20  social scientist?
21  A.  I would say that's accurate, yes.
22  Q.  And does your work involve data?
23  A.  Very large quantities of data, yes.
24  Q.  In your work, have you ever been called upon to advise
25  public officials on matters of public concern?
                                       Jencks - direct
                                                              245
 1  A.  Yes.
 2  Q.  Could you tell us briefly what that's been?
 3  A.  In the last few years, the principal activity that I've
 4  engaged in advising public officials has had to do with giving
 5  advice up to both the Congress and to various -- some
 6  committees in the executive branch of the federal government
 7  about the reform of Aid to Families with Dependent Children
 8  and, particularly, about income sources of welfare recipients
 9  that are not reported to the Department of Public Welfare,
10  typically.  We have been doing research on unreported income,
11  which proves to be quite relevant to changes in welfare laws.
12  Q.  Now, you're not an industrial psychologist, are you?
13  A.  I am not.
14  Q.  And you're not a full-time psychometrician?
15  A.  No, I'm not.
16  Q.  And you are not in the business of preparing promotional
17  tests for municipalities?
18  A.  No.
19  Q.  And you're not a police officer?
20  A.  No.
21  Q.  And you've never been a police officer?
22  A.  No.
23  Q.  Have you ever done any research involving testing?
24  A.  Yes.  I've written several books that dealt with testing,
25  and I'm currently working on a book dealing with racial
                                       Jencks - direct
                                                              246
 1  differences in test performance.
 2  Q.  When you say you're "working on a book," what exactly are
 3  you doing?
 4  A.  Last year when I was teaching at the University of Chicago
 5  as a visitor, I ran a conference with a colleague on racial
 6  differences in performance on academic tests and IQ tests and
 7  tests of that sort, involving experts from around the country
 8  who came and gave papers.  And we then decided that we would
 9  turn that into a book.
10           I've been editing the papers, writing a long
11  introduction, collecting additional papers on some areas that
12  were neglected in the conference, as it seemed to me.  And we
13  will probably publish that book with Harvard University Press
14  next year.
15  Q.  Now, how long have you been at Northwestern?
16  A.  I've been at Northwestern since 1979.
17  Q.  And what's your current position at Northwestern?
18  A.  I am the John D. MacArthur Professor of Sociology.
19  Q.  I understand that you'll soon be leaving the Midwest.
20  A.  That's correct.
21  Q.  Where will you be going?
22  A.  I've accepted a position at the Kennedy School of
23  Government at Harvard.
24  Q.  And what will you be doing at the Kennedy School of
25  Government?
                                       Jencks - direct
                                                              247
 1  A.  I will be teaching courses on social policy, poverty,
 2  welfare, race-related matters.
 3  Q.  Do you have a consulting business you run on the side?
 4  A.  I do not.
 5  Q.  But I have promised to pay you for your time that you are
 6  working on this case?
 7  A.  You have so promised, yes.
 8  Q.  Thank you.
 9           In connection with the work that you've done on this
10  case, did you get a chance to look at the actual test
11  instruments?
12  A.  Yes, I did.
13  Q.  And before you did that, did you sign this protective
14  order?
15  A.  I did.
16  Q.  And have you abided by the protective order?
17  A.  I have.
18           THE COURT:  First of all, do we have any objection to
19  his being considered as an expert in the area of testing or
20  industrial promotional testing?
21           MS. GLINK:  Yes, your Honor, we have a very large
22  objection because as Professor Jencks has stated, he has
23  absolutely no background in industrial psychology or test
24  development at all.  And, in fact --
25           THE COURT:  Well, of course, he has not been asked
                                       Jencks - direct
                                                              248
 1  that yet, and I wondered --
 2           MR. FLAXMAN:  I'm not calling -- we are not going to
 3  be seeking to offer those kinds of opinions.
 4           MS. GLINK:  We would object on foundation if he did.
 5           MR. FLAXMAN:  I think, when I ask him the opinion
 6  question, we can --
 7           THE COURT:  I was going to ask if he was aware of what
 8  the leading treatises are in the area and --
 9           MR. FLAXMAN:  That's not his expertise, and he is not
10  being offered for that kind of opinion.
11           THE COURT:  What is he being offered for, then?
12           MR. FLAXMAN:  As a --
13           THE COURT:  I take it he is being offered as an
14  expert?
15           MR. FLAXMAN:  He is being offered as a quantitative --
16  as an expert in quantitative social sciences.
17           THE COURT:  I am not aware that that is an established
18  area of social science.  If quantitative means that he is aware
19  of statistical evidence and statistical reports that are made,
20  that is one thing; but, I am not sure how it relates to
21  testing.
22           MR. FLAXMAN:  Well, let me --
23           THE COURT:  I am not trying to be difficult.
24           MR. FLAXMAN:  Let me ask some more foundation
25  questions.
                                       Jencks - direct
                                                              249
 1           THE COURT:  I am trying to make as good a record as I
 2  can for this case.
 3  BY MR. FLAXMAN:
 4  Q.  In the course of your professional work, have you been
 5  involved in testing?
 6  A.  I have been involved in analyzing the results of testing.
 7  I have not been involved in administering tests.
 8  Q.  When did you first become involved in analyzing the results
 9  of testing?
10  A.  1966.
11  Q.  And what kind of test was that that you were involved in
12  analyzing the results of?
13  A.  Those were tests administered to children enrolled in
14  school at all grade levels and a survey administered nationally
15  in 1965 to determine why black children were not achieving as
16  well as white children.
17  Q.  Was there a particular name for that survey?
18  A.  This was the survey -- a quality of opportunity survey
19  commonly known as the Coleman Survey, produced the Coleman
20  Report.
21  Q.  Where were you when you were working on analyzing that
22  data?
23  A.  I was -- at the time that I began working on that issue, I
24  was at the Institute for Policy Studies in Washington, and,
25  soon after that, I moved to Harvard University, where I was for
                                       Jencks - direct
                                                              250
 1  the next six years.
 2  Q.  In the course of analyzing that data, what kind of
 3  techniques did you use?
 4  A.  We used a wide range of statistical techniques.  We looked
 5  at the questions of validity and reliability of the tests.  We
 6  -- most of the analysis was done with what were then standard
 7  methods of multiple regression analysis.
 8  Q.  Now, when you said you looked at the reliability of the
 9  test, what do you mean by the reliability of the test?
10  A.  By "reliability" in this context, I mean that the different
11  items in the test appear to measure the same underlying skills
12  or, in some case, appear to measure different underlying
13  skills.  But it's an effort to determine whether or not the
14  test measures one thing or many different things.
15  Q.  And what do you mean by "the validity of the test"?
16  A.  The validity of the test means that we investigated the
17  degree to which the tests that were being administered to the
18  students in school predicted anything that we might be
19  interested in after they left school; whether they went to
20  college, how well they did in college, whether they got a good
21  job, how much they earned.  That kind of thing.
22  Q.  Now, did the work that you did on that project get written
23  up in any form?
24  A.  We did a number of book chapters and a couple of
25  professional articles out of it and, also, a full-length book
                                       Jencks - direct
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 1  that dealt extensively with that.
 2  Q.  When you say "we," who is the "we"?
 3  A.  There was a group of people at the Center for Educational
 4  Policy Research at Harvard, which I had founded when I went
 5  there.  There were seven of us, if I recall correctly, who
 6  worked on producing this book.  And I was the first author of
 7  that book, but there were a number of other co-authors.
 8  Q.  And what's the name of that book?
 9  A.  The name of that book is "Inequality."
10  Q.  Now, after that work, did you do any other work involving
11  tests?
12  A.  Yes.
13           We -- I continued to be interested in the question of
14  whether tests played an important role in predicting how well
15  individuals did in the labor market and published another book
16  in 1979 titled, "Who Gets Ahead?", which dealt with that
17  question.  That book also had a number of co-authors, but it
18  had -- it considered the role of tests in predicting wages and
19  the occupations that people ended up in.
20           And, then, during the last few years, I've returned to
21  the set of issues, because of an interest, in the role of tests
22  in explaining differences in wages between black and white
23  workers.
24  Q.  Now, when you did the work on how people do in the labor
25  market in tests, was there data that you analyzed for that?
                                       Jencks - direct
                                                              252
 1  A.  There are a large number of surveys in which it's -- either
 2  tests have been administered to the respondents or in which
 3  it's possible to link up respondents' names to tests that they
 4  took, for example, when they went into the armed services and
 5  took the Armed Forces qualification test.
 6           So, we did work with a large number of quantitative
 7  surveys of those issues.
 8  Q.  And what kind of tools did you use in analyzing that data?
 9  A.  I'm not exactly sure what you mean there.  Most of those
10  analyses are done with computers and data tape and statistical
11  methods, which I could describe if you want, but I'm not
12  certain --
13  Q.  Well, do you also teach courses in quantitative methods?
14  A.  I have taught courses in quantitative methods, yes.
15           THE COURT:  By "quantitative," you mean statistical
16  methods; is that --
17           MR. FLAXMAN:  Yes.
18  BY MR. FLAXMAN:
19  Q.  Have you taught courses?
20  A.  Yes, I have.
21  Q.  Okay.
22           And have you --
23           THE COURT:  Okay.
24           If I can -- because time is of the essence, do you
25  have any additional questions as to his qualifications that you
                                      Jencks - voir dire
                                                              253
 1  wish to ask at this time?
 2           MS. GLINK:  Your Honor, we do.
 3           THE COURT:  I will permit you to do that, so we can
 4  try to -- because we are running into a time problem here.  So,
 5  I want to be sure that --
 6                      VOIR DIRE EXAMINATION
 7  BY MS. GLINK:
 8  Q.  You've already acknowledged, Professor Jencks, that you do
 9  not have a background in industrial psychology or testing.  And
10  isn't also true that you've never developed a test for a police
11  department?
12  A.  That's correct.
13  Q.  Or a fire department?
14  A.  Yes.
15  Q.  Or for any safety force position?
16  A.  That's correct.
17  Q.  And that you've also never developed a test for any
18  employment job; isn't that correct?
19  A.  That's correct, yes.
20  Q.  Isn't it also correct that you've never evaluated the
21  validity of any promotional examination given for promotion in
22  a police or fire department?
23  A.  That's correct.
24  Q.  And you also similarly never evaluated the validity of a
25  promotional examination given in an employment position?
                                      Jencks - voir dire
                                                              254
 1  A.  That's correct, yes.
 2  Q.  Isn't it also true, Professor Jencks, that you've never
 3  reviewed any studies which specifically addressed the
 4  predictability of promotional tests in the context of police
 5  departments?
 6  A.  Other than one study that I reviewed in connection with
 7  this trial, that's correct.
 8  Q.  And that study did not directly deal with the predicted
 9  value of a content valid test in a police department, did it?
10  A.  That's correct.
11  Q.  Isn't it also true that you've never conducted a job
12  analysis of the job of police sergeant?
13  A.  That's correct, yes.
14  Q.  Or for any police position?
15  A.  That's correct.
16  Q.  And that you've never even interviewed a Chicago police
17  sergeant about his job duties or responsibilities?
18  A.  That's correct.
19  Q.  And that your only knowledge about the job of police
20  sergeant is based on your readings of the documents that were
21  given to you in preparation for this litigation; isn't that
22  correct?
23  A.  That's correct.
24  Q.  And it would also be fair, would it not, to characterize
25  your knowledge of the EEOC Guidelines on Employee Selection
                                      Jencks - voir dire
                                                              255
 1  Procedure and your knowledge of the standards for industrial
 2  psychologists in developing tests as being general?
 3  A.  I think that's a reasonable characterization, yes.
 4  Q.  And isn't it also true that the tests that you have
 5  analyzed in the past, the ones that you were just referring to,
 6  were generally scholastic aptitude tests or achievement tests
 7  in the school setting?
 8  A.  Many of the tests are scholastic aptitude and achievement
 9  tests in the school setting, but some -- quite a number of
10  these tests are also tests that are used for job selection.
11  For instance, the Armed Forces qualification test is a test of
12  that kind and is used for selection of recruits into the armed
13  forces.  And that's probably the test that is most -- I've
14  spent the most time working on.
15  Q.  And your other work in the area has been on either aptitude
16  tests or cognitive ability tests; is that right?
17  A.  That's correct.
18  Q.  And that you've never actually analyzed any job knowledge
19  test that's given in the employment sector for promotion to a
20  specific position; isn't that correct?
21  A.  That's correct.
22           MS. GLINK:  Based on his answers here today, we would
23  move to strike him as an expert with regard to any issue
24  regarding the items that have been developed in this test,
25  their validity, their predicted validity, and anything having
                                      Jencks - voir dire
                                                              256
 1  to do with the field of industrial psychology or psychometrics.
 2           THE COURT:  All right.
 3           I think we have brought out all of the necessary
 4  information from the witness.  Rule 702 of the Federal Rules of
 5  Evidence has, I guess, what has been characterized as a
 6  relatively low level of requirement to qualify for testimony as
 7  an expert.  The language being, "If scientific, technical or
 8  other specialized knowledge will assist the trier of fact to
 9  understand the evidence or to determine a fact in issue, a
10  witness qualified as an expert by knowledge, skill, experience,
11  training or education may testify thereto in the form of an
12  opinion or otherwise."
13           I will find that for purposes of this witness'
14  testimony in this hearing for preliminary injunction that the
15  witness does qualify as an expert in the stated area, and that
16  the stated area is sufficiently relevant to the issues in the
17  case; that his testimony would be admissible.
18           So, I will -- I take it, with the offering of this
19  witness as an expert in what is called quantitative sociology,
20  assuming that that is an accepted area of sociology that
21  involves the use of statistics, regression analyses, analysis
22  of at least certain forms of tests, I would find that this
23  witness is an expert in that area and may give his opinion
24  pursuant to the Federal Rules of Evidence.
25           MR. FLAXMAN:  Thank you, your Honor.
                                       Jencks - direct
                                                              257
 1                   DIRECT EXAMINATION (Resumed)
 2  BY MR. FLAXMAN:
 3  Q.  Now, in the course of your work in this case, did you have
 4  occasion to review the 150-page -- 150-question short answer
 5  written job knowledge test?
 6  A.  Yes, I did.
 7  Q.  And based on your review of that test of 150 questions, did
 8  you --
 9           THE COURT:  One thing -- I am sorry to interrupt, but
10  I take it there has been some discussion with the witness about
11  the order that has been entered seeking to preserve the
12  confidentiality --
13           MR. FLAXMAN:  I am not asking --
14           THE COURT:  -- of the questions on the test?
15           MR. FLAXMAN:  Yes.
16           THE COURT:  And if there is a problem or a need at
17  some point to be specific as to an exact question, I think we
18  need to have a sidebar first to see how we are going to handle
19  it.
20           All right.  You may proceed.
21  BY MR. FLAXMAN:
22  Q.  Based on your review of those 150 questions, did you form
23  an opinion, based on your experience with race differences on
24  written tests, as to whether or not those 150 multiple-choice
25  questions were likely to have race differences when they're
                                       Jencks - direct
                                                              258
 1  taken by a group of different races?
 2  A.  I would certainly have expected to see a racial difference
 3  in performance on those tests, yes.
 4  Q.  And why is that?
 5  A.  Because many other tests that -- of the same character --
 6  that is, tests that measure knowledge and information about
 7  specific areas and require protracted study of subject matter
 8  materials in preparation for the examination -- have tended to
 9  show a pattern of substantial racial differences.
10           Indeed, it's very difficult to find examples of tests
11  that don't show fairly sizable differences between blacks and
12  whites and their performance on an exam of this type.
13  Q.  And does anybody know why there are these differences?
14  A.  That's obviously an immensely controversial question.
15  There is not a short answer to that question.
16  Q.  Did you also have occasion to look at the 60 questions that
17  were associated with the in-basket exercise?
18  A.  Yes, I did.
19  Q.  And those were 60 short answer questions, also?
20  A.  They were.
21  Q.  Did you form an opinion as to whether or not you would
22  expect the results on that test to have race differences?
23  A.  I did form an opinion.  And I would have expected to find
24  race differences, although not -- I wouldn't have been as
25  confident about that as I was with the first test.
                                       Jencks - direct
                                                              259
 1  Q.  And why is that?
 2  A.  Because the character of the in-basket test is -- differs
 3  more noticeably from the character of the large range of tests
 4  from which I would be generalizing from than does the first
 5  one.  And the more dissimilar two tests are, the more hesitant
 6  you are to make generalizations about the fact that the results
 7  from one set of tests will carry over to another one.
 8  Q.  Now, did you also examine the oral component -- the written
 9  -- the oral portion of the test?
10  A.  I did.
11  Q.  And did you form an opinion as to whether that was likely
12  to have a race impact?
13  A.  I formed a much less confident opinion than on the other
14  two tests, I would say.
15  Q.  Now, in the course of your work --
16           THE COURT:  I do not find that he has been responsive
17  to the last two portions of it.
18           MR. FLAXMAN:  Well --
19           THE COURT:  I do not know what he means by he "formed
20  a less confident opinion."  I do not know what his opinion is
21  and I do not know why he does not have any confidence in his
22  opinion.
23           MR. FLAXMAN:  All right.
24           THE COURT:  It is to the point where it is so vague, I
25  do not know what conclusion to draw so far from his testimony.
                                       Jencks - direct
                                                              260
 1           MR. FLAXMAN:  I --
 2           THE COURT:  Okay.
 3  BY MR. FLAXMAN:
 4  Q.  When you formed the less confident opinion about the oral
 5  test, what was that opinion?
 6  A.  My guess about the oral test would have been that there
 7  would have been some racial difference in performance, but it
 8  was a guess based on very little information about other
 9  comparable tests.
10           THE COURT:  Again, I want to make it clear, Doctor,
11  that we do not want any guessing or conjecture in your
12  testimony, you know.
13           MR. FLAXMAN:  Well, I am not offering -- I think I'll
14  -- well --
15           THE COURT:  Okay.
16  BY MR. FLAXMAN:
17  Q.  In the course of your work as a quantitative social
18  scientist, have you been called upon, other than testifying
19  here today, to offer opinions about things?
20  A.  Yes.
21  Q.  And have you been called upon to offer opinions about
22  questions for which you did not have research data?
23  A.  Yes.
24  Q.  And how would you answer those questions?
25  A.  In general, you try to say what data you have and why you
                                       Jencks - direct
                                                              261
 1  think it might be relevant to the question.
 2  Q.  Have you ever been wrong when you've answered a question
 3  where you did not have complete research data?
 4  A.  Frequently.
 5  Q.  And is that why you try to have research data before you
 6  answer questions?
 7  A.  It is.
 8  Q.  And did you have any research data about how the oral test
 9  would come out on different races?
10  A.  I had --
11           MS. GLINK:  Your Honor, I'm going to object to this
12  line of questions on the grounds that we've admitted that
13  there's a prima facie case of adverse impact here in this case,
14  and it's not at issue in this hearing before this Court.
15           THE COURT:  This is not an intentional discrimination
16  case that we are dealing with here.
17           MR. FLAXMAN:  That's correct.  What I'm trying --
18  well, let me --
19           THE COURT:  They have conceded disparate impact.  So,
20  we take it from there.  But what you have -- I think you are
21  seeking to develop is that the nature of the questions lead
22  him, I guess, to conclude, based on something, that the
23  questions are likely not to be valid because they will have --
24  create this disparate impact.
25           Now, whether he then can go beyond that is something
                                       Jencks - direct
                                                              262
 1  else that there is -- but I take it that is the relevance of
 2  where we are, if I am understanding what you are seeking to
 3  elicit here.
 4           MR. FLAXMAN:  You are understanding what I am seeking
 5  to elicit.
 6  BY MR. FLAXMAN:
 7  Q.  Could you explain in any greater detail why it's your
 8  opinion that the written job knowledge test is likely -- would
 9  have been likely before it was administered to have an impact
10  on minorities?
11           MS. GLINK:  Your Honor, I am going to make the same
12  objection that I just made.
13           THE COURT:  Well, I am going to overrule it in the
14  sense that I think we are dealing -- well, I do not want to get
15  into that.  The objection is overruled.
16           You may proceed.
17  BY THE WITNESS:
18  A.  The written job knowledge test appears to measure mastery
19  of a body of material, which is similar in character to the
20  kinds of material that many other achievement tests in other
21  areas measure.
22           MS. GLINK:  Your Honor, I'm going to move to strike
23  that testimony.  He is not qualified to offer an opinion about
24  the nature of this test, its validity, its content, and what it
25  was designed to measure, or if it's similar to other tests that
                                       Jencks - direct
                                                              263
 1  he's looked at.
 2           THE COURT:  I will overrule the objection.
 3           You may proceed.
 4  BY THE WITNESS:
 5  A.  When you give an examination which asks people to
 6  demonstrate their knowledge of a substantial body of material
 7  that they have studied in advance of the examination, you
 8  typically find that there are racial differences in performance
 9  on that examination.  And there was no reason to believe that
10  this examination would be an exception to that quite uniform
11  pattern.
12  BY MR. FLAXMAN:
13  Q.  In the course of your work, have you ever examined the
14  relationship between scores on a test and performance in a
15  particular task?
16  A.  Yes.
17  Q.  Could you describe for us what that situation was?
18  A.  Well, there are --
19           THE COURT:  Could I interrupt for a minute, so I
20  understand what he said?
21           As I understand what he is saying, every single
22  examination that anybody takes in any educational institution
23  is going to be affected by race.  Is that what he is basing his
24  conclusion on, that any test of knowledge is going to have a --
25  that there is going to be a racial impact?
                                       Jencks - direct
                                                              264
 1           MR. FLAXMAN:  Well, is --
 2           THE COURT:  That is what I understand he has testified
 3  to.  I just want to be sure what he is saying.
 4  BY THE WITNESS:
 5  A.  Let me try to clarify it.
 6           THE COURT:  Maybe in his mind, the test that he has
 7  analyzed had this, but I want to be sure I understand that what
 8  he is saying is that every test that tests knowledge has a
 9  racial impact, because that is my understanding of what he
10  said.
11  BY MR. FLAXMAN:
12  Q.  Is that your understanding?
13  A.  There is a very consistent general pattern of racial
14  differences in performance on such tests.  That doesn't speak
15  to the question of whether the test is biased or whether the
16  test is valid and so forth.  But there is a consistent pattern
17  of racial differences.
18  Q.  And is that consistent pattern, whites as a group do better
19  than blacks as a group on written tests?
20  A.  That's correct.
21  Q.  And when you did your work for this case, did you review
22  the report that Dr. Barrett did, Defendant's Exhibit D?
23  A.  I did.
24  Q.  And in that report, did you find the reference by
25  Dr. Barrett to what you just described, the phenomena that, as
                                       Jencks - direct
                                                              265
 1  a group, whites do better on written tests than blacks do?
 2  A.  I did.
 3  Q.  And is that phenomena something that's generally accepted
 4  by social scientists?
 5  A.  I believe that it is.
 6           THE COURT:  Now, you have expanded this beyond a test
 7  of knowledge to any test, any written test?
 8           MR. FLAXMAN:  Any written test, yes.  And that's --
 9  your Honor is looking skeptically at me.
10           THE COURT:  No, no, no.  I just --
11           MR. FLAXMAN:  That's --
12           THE COURT:  I am not an expert in this field.
13           MR. FLAXMAN:  Okay.
14           THE COURT:  And I am just seeking to understand what
15  the testimony is, that is all.
16  BY MR. FLAXMAN:
17  Q.  Now, in the work that you have done, have you ever tried --
18  you have done work to correlate or relate scores on written
19  tests with achievements in life or job performance; is that
20  right?
21  A.  I have done such work, yes.
22  Q.  Is there recent -- are you currently involved in such a
23  project?
24  A.  I am currently involved in a project which is trying to
25  explain differences between -- in wages between black -- young
                                       Jencks - direct
                                                              266
 1  black and white workers, and to see to what extent those can be
 2  accounted for by test performance.
 3  Q.  Now, would it be accurate to say that wages or the amount
 4  of wages earned is the criterion measure?
 5  A.  It would be accurate, yes.
 6  Q.  And what do you -- what does the study involve relating to
 7  wages?
 8  A.  This is a study in which we are trying to determine if
 9  various components of the Armed Services Vocational Aptitude
10  Battery predict wages ten years after somebody has taken the
11  test, and to what extent you can explain the disparities
12  between blacks and whites in their wages by referring back to
13  how they performed on the test ten years earlier.
14  Q.  Now, are you familiar with the Armed Forces Vocational
15  Aptitude Battery?
16  A.  I am.
17  Q.  What kind of a test is that?
18  A.  It's an -- it's actually a battery of tests covering a
19  fairly wide range of areas.  Some of them are measures of
20  academic achievement.  Some of them are measures of familiarity
21  with, let's say, mechanical equipment and motor vehicles and
22  that sort of thing.  Some of them are sort of speed of
23  performance and arithmetic kind of operations.
24  Q.  Is that a test that's been administered over a long period
25  of time?
                                       Jencks - direct
                                                              267
 1  A.  Yes, it is.
 2  Q.  How long a period of time?
 3  A.  Its present form, I think, goes back to the 1970s, if I
 4  remember rightly; and, in earlier forms -- in one form or
 5  another, it goes back to World War II.
 6  Q.  And has that been administered to everybody in the armed
 7  services?
 8  A.  I'm not certain that it's administered to everybody in the
 9  armed services.  It is administered -- in fact, I am certain it
10  is not administered to all officers.  Most officers do not take
11  the ASVAB.  Enlisted men coming into the Army do take it.
12  Q.  And how has this data been made available to you from this
13  test?
14  A.  The one we are working with covers about 10,000 people.
15  Q.  And does that 10,000 people have information identifying
16  who is black and who is white?
17  A.  It does.
18  Q.  And have you observed race differences on performance of
19  the Armed Service Vocational Aptitude Battery?
20  A.  Yes.
21  Q.  And were you the first person to observe race differences
22  in that test?
23  A.  I was not.
24  Q.  Now, when you're -- in the work that you're doing to relate
25  scores on that test, the Armed Service Vocational Aptitude
                                       Jencks - direct
                                                              268
 1  Battery, to wages, could you briefly explain what that analysis
 2  consists of?
 3  A.  In essence, that analysis is an effort to see whether
 4  individuals who perform equally on the test end up with equal
 5  wages, and, hence, whether you can use the test to explain the
 6  differences -- use differences in the test to explain
 7  differences in wages.
 8  Q.  Is there any reason of which you're aware why that kind of
 9  analysis could not be performed with a test and Chicago police
10  sergeants?
11  A.  Well, the criterion in this case is wages, and I'm not sure
12  how we would use that with police sergeants.  If I were trying
13  to evaluate police sergeants, I would need another criterion.
14  Q.  What kind of criterion could you use?
15  A.  Presumably, I would want measures of performance based
16  either on some objective criteria of performance on the job or
17  evaluations by people's superiors.  Something of that sort.
18  Q.  Are you -- in the work that you've done, have you ever come
19  across measures of performance of workers?
20  A.  Well, actually, before we began working with the Armed
21  Services Vocational Aptitude Battery, we spent quite a lot of
22  time reviewing the studies that the military had done to
23  validate that test as a predictor of performance in the armed
24  forces.  And that is probably the largest and best set of
25  studies to validate a test of that particular kind that's
                                       Jencks - direct
                                                              269
 1  available.
 2  Q.  And when you reviewed those studies, did you learn about
 3  measures of performance that are used in the armed services?
 4  A.  Yes.
 5  Q.  And is there a measure of job performance that's used in
 6  the armed services?
 7  A.  Well, the armed services use many different measures of job
 8  performance, depending, of course, both on the job, and they
 9  use measures in evaluating these tests that are not always used
10  in the routine everyday operation of the Army.  But, yes, they
11  do have such measures.
12  Q.  In the course of your review of the military's performance
13  rating systems, did you form an opinion as to whether those
14  performance rating systems reflected actual performance?
15  A.  Yes, I did.
16  Q.  And what was that opinion?
17  A.  My opinion was that they reflected performance as well as
18  it was possible to measure it at the time.  They're not
19  perfect.  No measure is perfect.
20  Q.  Now, when you reviewed the report -- Defendant's Exhibit 5,
21  the big report on validation -- did you review the job
22  description of the position of sergeant?
23  A.  I did.
24  Q.  And is that the kind of material that you customarily
25  review in your work as a quantitative social scientist?
                                       Jencks - direct
                                                              270
 1           MS. GLINK:  I am going to object, your Honor.  I am
 2  sorry.  He said "quantitative social scientist."
 3  BY THE WITNESS:
 4  A.  Yes, that is the kind of material.
 5  BY MR. FLAXMAN:
 6  Q.  When you've read job description, what opinion, if any, did
 7  you come away with as to what a Chicago police sergeant does?
 8  A.  The job description led me to believe that a Chicago police
 9  sergeant spent most of his time at the police station behind a
10  desk.
11  Q.  And why did you come to that opinion?
12  A.  Because there was almost no reference to activities that
13  occur outside of the police station in the job description.
14  There was some reference, but it was very brief.
15  Q.  Now, when you read that validation report, or that report,
16  Defendant's Exhibit D, did you find anything in there about how
17  the decision was made that the test would consist of three
18  equally weighted components?
19  A.  Yes, there was some discussion of that in an appendix of
20  the report.
21  Q.  And do you recall what that discussion was or what that
22  description was of the equal weighting decision?
23  A.  My memory is that it discussed a computer simulation.
24  Q.  Now, do you agree with that statement that, if you don't
25  have empirical criterion-related data, that equal weighting of
                                       Jencks - direct
                                                              271
 1  different, several test components is a reasonable approach?
 2  A.  If you had no data, then equal weighting is a reasonable
 3  approach.  Because if you have no data, you might as well reach
 4  into a paper bag and pull one thing out as another; and,
 5  therefore, equal weighting is a perfectly reasonable approach.
 6  Q.  Now, based on your experience in analyzing data and
 7  advising public officials, is there any way that data could
 8  have been acquired to relate performance on the test to
 9  performance on the job?
10  A.  Data certainly could be acquired if the Chicago Police
11  Department were committed to getting its officers evaluated and
12  if there's set in place some system of performance evaluation.
13  Or, it had such a system in place already.
14  Q.  And you don't know whether or not it does or how well it
15  works or anything of that nature?
16  A.  All I know about that is what I've heard in court this
17  morning.
18  Q.  Okay.
19           Now, there's been mention in court this morning about
20  a concurrent study.  In your opinion, could some sort of
21  concurrent study have been undertaken?
22  A.  It appears from what was said in court this morning that it
23  could.
24  Q.  And how -- could you explain to us how a concurrent study
25  could have been undertaken?
                                       Jencks - direct
                                                              272
 1  A.  If the sergeant's examination had been administered to some
 2  people who were already sergeants and if information could have
 3  been gathered from the department about the performance of
 4  those sergeants, it would have been possible to correlate the
 5  performance of the sergeants on the examination with the
 6  assessments made by their superiors.
 7  Q.  Now, how would you go about determining the number of
 8  sergeants to whom the test should be administered for a
 9  concurrent validation effort?
10  A.  That would depend on how -- how much error you were willing
11  to put up with in your estimates.  But in the normal course of
12  these things, you would expect that, if the relationship was
13  strong enough to make the test make sense, it ought to be
14  apparent with a sample of 100 or 200.
15  Q.  Now, in the course of your work as a quantitative social
16  scientist, have you advised public bodies about policy choices?
17  A.  On occasion, yes.
18  Q.  Have you recently advised about policy choices for welfare
19  reform?
20  A.  Yes, I have.
21  Q.  And when you made those recommendations, did you have any
22  data on which you were relying?
23  A.  Yes.
24  Q.  What kind of data did you have?
25  A.  We had been collecting information about the unreported
                                       Jencks - direct
                                                              273
 1  incomes of welfare recipients with which we were able to make
 2  some predictions about what might happen if welfare benefits
 3  were raised or lowered or what might happen if welfare
 4  recipients went to work.
 5  Q.  Now, as a quantitative social scientist, if you were making
 6  a recommendation to the City of Chicago about whether it should
 7  use the results of a promotional test that had a disparate
 8  impact on minorities in its police department, would you want
 9  some kind of data for making that recommendation?
10  A.  I would.
11  Q.  What kind of data would you want?
12  A.  I would have wanted evidence that there was a strong
13  association between performance on the test and performance in
14  the job of sergeant.
15  Q.  And when you reviewed the Defendant's Exhibit 5, did you
16  find any of that evidence?
17  A.  No, I did not.
18           MR. FLAXMAN:  Thank you.  I have nothing further.
19           THE COURT:  All right.
20           Cross-examination.
21           MS. GLINK:  Yes, your Honor.  Can you give me one
22  second?
23           THE COURT:  Yes.
24           (Brief pause.)
25           THE COURT:  Would you like a short break here?  The
                                       Jencks - direct
                                                              274
 1  problem is I am going to have to break at 12:30 because I have
 2  an interview I am conducting.
 3           MS. GLINK:  I don't expect our cross-examination to be
 4  very long.  So if we break or five or ten minutes, I think I
 5  can finish it up before 12:30.
 6           THE COURT:  All right.
 7           Why do we not plan to -- I do not know, my watch says
 8  five after 12:00.  Why do we not plan to resume promptly at
 9  12:15, and we will have to break at 12:30.  We will resume
10  again at 1:30.
11           MR. FLAXMAN:  I will not talk to Professor Jencks.
12           THE COURT:  Right, to the extent that he will still be
13  on cross-examination.
14           All right.  We will take a short break at this time
15  and you may wish to use the facilities and so on.
16           (Whereupon, a recess was taken.)
17           THE COURT:  Court is back in session then, if counsel
18  is ready to proceed with cross-examination.
19                        CROSS-EXAMINATION
20  BY MS. GLINK:
21  Q.  Professor Jencks, in your opinion, isn't the need to assure
22  that the promotional process is fair to the patrol officers
23  taking -- that are going to be subjected to this process one of
24  the most important concerns facing a municipality when
25  developing a police promotional exam?
                                        Jencks - cross
                                                              275
 1  A.  It certainly is one of the most important, yes.
 2  Q.  You've had an opportunity, haven't you, to study
 3  discrimination in the workplace during the course of your
 4  research; isn't that correct?
 5  A.  I have.
 6  Q.  And that in your opinion, there is bias and discrimination
 7  in the workplace; isn't that correct?
 8  A.  That's often the case, not always.
 9  Q.  And this is based on your years of experience analyzing
10  success on the job?
11  A.  Yes.
12  Q.  You would agree, would you not, based on this evaluation of
13  the workplace and the chance of discrimination and bias that a
14  performance evaluation system that would require supervisors to
15  evaluate their subordinates for promotional purposes and other
16  subjective measures of performance are generally challenged on
17  the grounds of fairness, favoritism, bias and discrimination?
18  A.  No, I would not agree that they were generally challenged.
19  They are often challenged.
20  Q.  And you would further agree, wouldn't you, that concerns of
21  fairness in the promotional process are intensified in the
22  public sector?
23  A.  Yes, I would.
24  Q.  Isn't it also true that if subjective criteria are not
25  available because of concerns of bias and because of concerns
                                        Jencks - cross
                                                              276
 1  of fairness in the system, that objective testing is an
 2  employer's only alternative?
 3  A.  That's often the case, yes.
 4  Q.  Professor Jencks, have you ever developed a work appraisal
 5  or performance evaluation system for a police department?
 6  A.  No.
 7  Q.  Have you ever studied the feasibility of implementing such
 8  a system in a police department?
 9  A.  No.
10  Q.  And, in fact, isn't it true that you've never seen any
11  performance appraisal system that has been implemented in a
12  large police department successfully?
13  A.  I have not studied such systems.
14  Q.  You stated earlier in your testimony that there was a
15  sample size -- if you were to conduct -- one, that you believed
16  a concurrent validation study was available -- an available
17  tool to the City of Chicago; did you not?
18  A.  Yes.
19  Q.  And that you believed it would be possible in a concurrent
20  study to give the examination to a sample size, and you said,
21  of somewhere between 100 and 200; is that correct?
22  A.  I did.
23  Q.  What statistical technique, if any, did you use to
24  determine the sample size?
25  A.  I made an estimate, in the ten seconds that I had to make
                                        Jencks - cross
                                                              277
 1  this calculation, of how large the standard error would be or
 2  the sampling error of the statistics that you would get and
 3  made a guess as to how strong a relationship you would want to
 4  have before you made a judgment that this was a reasonable
 5  test.
 6           And if you make an estimate of the size of the
 7  correlation that there needs to be before you would want to use
 8  the test, then you ought to get something with a sample.
 9  Certainly, with a sample of 200, you ought to be able to detect
10  a correlation that is large enough to justify the use of a
11  test.
12  Q.  But you, in fact, did not conduct such an analysis?
13  A.  No, I certainly did not.
14  Q.  In making this estimate, did you consider restriction in
15  range or predictors and other criteria, or predictors and other
16  criteria?
17           THE COURT:  Could you restate that, again?
18           MS. GLINK:  Yes.
19  BY MS. GLINK:
20  Q.  In making your recommendation that you could do it -- use a
21  sample size of 100 or 200 sergeants to conduct a concurrent
22  study, did you consider restriction in range on the predictor
23  or criterion?
24  A.  It's my understanding that the restriction in range would
25  be considerably reduced given the way the promotions have gone
                                        Jencks - cross
                                                              278
 1  on in the recent past in the department.
 2  Q.  And what do you mean by that?
 3  A.  That is, the way in which the previous promotions were
 4  conducted should give you a substantial range in performance on
 5  a test of this kind.
 6  Q.  I'm not sure I understand how performance on a test that's
 7  different than the test that we've given here is in any way
 8  indicative of performance on this test?
 9  A.  The point is that it shouldn't be too indicative.  So, you
10  should have a fairly wide range of performance on this test.
11           You normally run into a big problem with restriction
12  of range if you have previously used the same test because only
13  people who scored very high on the test get promoted; that it's
14  very hard to tell within that population all of whom scored,
15  let's say, in the top 500 on a test.  Since this test hasn't
16  been used in the past, you should get a wider variation in
17  performance on this test among people who are now on the job.
18  Q.  And you didn't do any specific analysis of this?
19  A.  No, I did not.
20  Q.  You also said that you would -- you believed that the study
21  would be proper and that, in order to conduct it, you would
22  need objective performance measures of job performance; is that
23  correct?
24  A.  I don't believe that I said that they would have to be
25  objective.  It would certainly help if they were.
                                        Jencks - cross
                                                              279
 1  Q.  What type of objective measures would you suggest?
 2  A.  Well, one common kind of measure that is used in this kind
 3  of situation is the degree to which there is some agreement
 4  about performance among a number of different people who have
 5  had contact with an officer.  That's not -- never completely
 6  objective, of course.
 7  Q.  What quantitative --
 8           THE COURT:  I do not understand what that answer is.
 9  I cannot --
10           THE WITNESS:  If you have a number of different
11  supervisors who evaluate somebody and they are in agreement
12  about that person, that is a more objective measure than if you
13  rely on a single supervisor's evaluation of that individual.
14           THE COURT:  Okay.
15  BY MS. GLINK:
16  Q.  What, if any, quantitative analysis did you conduct to
17  determine the reliability of this type of objective measure?
18  A.  In this case, none.
19  Q.  You've testified that, in your opinion, the City of Chicago
20  was required to have empirical evidence demonstrating a
21  correlation between test scores and performance of a sergeant
22  before using the results of this examination in rank order;
23  isn't that correct?
24  A.  I don't believe that I testified that it was required.  I
25  believe that I was asked whether it would be desirable, and I
                                        Jencks - cross
                                                              280
 1  said yes.
 2  Q.  Have you ever conducted a criterion-related validation
 3  study for the promotion -- for a promotional examination?
 4  A.  I have not.
 5  Q.  Your field of expertise is quantitative social science; is
 6  that correct?
 7  A.  Yes.
 8  Q.  There are no professional standards which require empirical
 9  evidence of the type that you are suggesting that the City of
10  Chicago have in this case, are there?
11  A.  I'm not sure I understand the question.
12  Q.  Let me draw your attention to your affidavit that you gave
13  in this case.  I believe it was attached to plaintiffs'
14  memorandum.
15           MS. GLINK:  Do you have it?
16           MR. FLAXMAN:  No.
17           (Brief pause.)
18  BY MS. GLINK:
19  Q.  I'm going to show you a copy of this and ask you to read
20  Paragraph 6.
21           (Document tendered.)
22  BY THE WITNESS:
23  A.  "In my opinion, empirical evidence is required before
24  scores on this particular test are used to make rank order
25  promotions which severely impact minority applicants."
                                        Jencks - cross
                                                              281
 1           Do you want me to read the remainder of the paragraph,
 2  as well?
 3  BY MS. GLINK:
 4  Q.  No, that's okay.
 5           What did you mean by that?
 6  A.  I meant that, from a scientific point of view, it would be
 7  a mistake to assume that that -- that there was predicted
 8  validity unless you had direct evidence.
 9  Q.  There's no professional standards in your field of
10  quantitative social science that requires such empirical
11  evidence, are there?
12  A.  There are -- it is a general professional understanding
13  that you don't make predictions for which you don't have
14  evidence; yes.  But there are no professional standards
15  promulgated by a body that says you shouldn't make predictions
16  which you don't have evidence for.
17  Q.  So, it's really a --
18           THE COURT:  You are not talking about evidence then,
19  you are talking about direct evidence?
20           THE WITNESS:  Yes.
21           THE COURT:  Is that what you are saying?
22           THE WITNESS:  Yes, that's correct, yes.
23           THE COURT:  Okay.
24           Go ahead.
25  BY MS. GLINK:
                                      Jencks - redirect
                                                              282
 1  Q.  So, your opinion is really based on policy, as a policy
 2  matter?
 3  A.  I certainly made the -- was answering the question earlier
 4  today about a policy matter.  But it is my opinion as a
 5  professional matter that one shouldn't make predictions which
 6  you don't have direct evidence for, unless you make clear that
 7  you don't have such evidence.
 8           MS. GLINK:  I have nothing further.
 9           THE COURT:  All right.
10           Any redirect?
11           MR. FLAXMAN:  Yes.
12                       REDIRECT EXAMINATION
13  BY MR. FLAXMAN:
14  Q.  The performance -- when you were asked about performance
15  evaluations in a police department, you have studied
16  performance evaluations in the military?
17  A.  I have studied the work that other people did in that
18  area.  I have not done work of that kind myself.
19  Q.  And has the racial composition of the military changed over
20  time?
21  A.  Yes, it has.
22  Q.  And how has it changed?
23  A.  The proportion of black officers and sergeants has risen;
24  and, indeed, the proportion of black enlisted men has risen
25  over a longer period of time.
                                      Jencks - redirect
                                                              283
 1  Q.  And, at one time, were there problems with the performance
 2  rating system in the military being unfair to blacks?
 3  A.  That was certainly a widespread perception.
 4  Q.  And did that -- has that widespread perception decreased as
 5  there have been more black supervisors?
 6  A.  Yes, it has.
 7  Q.  Is there any empirical data to support that widespread
 8  perception?
 9  A.  It's very difficult to determine whether people's
10  perceptions of unfairness are correct or incorrect.  But as the
11  proportion of blacks in supervisory positions in the Army has
12  risen, the perception of unfairness has certainly fallen.
13           MR. FLAXMAN:  Thank you.  Nothing further.
14           MS. GLINK:  We have nothing further, your Honor.
15           THE COURT:  All right.  That concludes your testimony
16  then, and you are excused.
17           (Witness excused.)
18           THE COURT:  And we will recess for lunch and resume --
19  plan to resume at 1:30, then.
20           (Whereupon, a recess was taken at 12:30 o'clock p.m.,
21      until 1:30 o'clock p.m., the same day.)
22  A.M. session reported by:
    Joseph A. Rickhoff, CSR, RPR
23                          *  *  *  *  *
    I certify that the foregoing is a true and accurate transcript
24  of proceedings in the above-entitled matter.
25
    ________________________________ __________________, 1996.
                                                              284
 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                               )
             vs.                 )
 6                               )
    CITY OF CHICAGO,             )  Chicago, Illinois
 7                               )  March 6, 1996
                  Defendant.     )  1:30 o'clock p.m.
 8
 9
                 TRANSCRIPT OF PROCEEDINGS - Hearing
10              BEFORE THE HONORABLE JOHN A. NORDBERG
11
    APPEARANCES:
12
13  For the Plaintiff:      LAW OFFICES OF KENNETH N. FLAXMAN, P.C.
                            BY:  MR. KENNETH N. FLAXMAN
14                          122 South Michigan Avenue, Suite 1850
                            Chicago, Illinois  60603
15
16  For the Defendant:      CITY OF CHICAGO
                            BY:  MS. DARKA PAPUSHKEWYCH
17                               MS. SHONA B. GLINK
                                 MR. JAY KERTEZ
18                          30 North LaSalle Street, Room 1020
                            Chicago, Illinois  60602
19
20  Court Reporter:         MR. JOSEPH A. RICKHOFF
                            219 S. Dearborn Street, Room 1738
21                          Chicago, Illinois  60604
22                * * * * * * * * * * * * * * * *
                      PROCEEDINGS RECORDED BY
23                     MECHANICAL STENOGRAPHY
                  TRANSCRIPT PRODUCED BY COMPUTER
24
25
 
                                                              285
 1           THE COURT:  Court is back in session.
 2           All right.  We have got everyone back in court.
 3           Is it planned now to have Mr. Barrett as the next
 4  witness out of order in their case in chief?  Is that where we
 5  are?  Or do you have some other witnesses to conclude?
 6           MR. FLAXMAN:  The city asked that we put on the
 7  subject -- the sergeants to testify before Mr. Barrett --
 8  Dr. Barrett testifies.
 9           THE COURT:  Oh, I see.  Okay.  All right.
10           MR. FLAXMAN:  We're prepared to do that.
11           THE COURT:  Now, before we do this, this, obviously,
12  is something that I have been thinking about and I do not want
13  to delay it any longer.  The volume and the special nature of
14  the material that is being introduced here really prompts
15  this.  I was trying to avoid, because of time problems,
16  requiring this, but it seems to me that I am going to have a
17  better opportunity to make a better decision with additional
18  help from counsel by asking that we have each side submit a
19  proposed findings of fact and conclusions of law.  I think I
20  really have to ask for that, because of the complexity of some
21  of the material, particularly.  And that leads me to where we
22  are so far as the timing.  I appreciate the fact that the
23  announcement indicated that the police department sought to
24  make the promotions by or on next Monday, I guess --
25           MS. PAPUSHKEWYCH:  That's correct, your Honor.
 
                                                              286
 1           THE COURT:  -- or as of the end of the day, anyway, of
 2  next Monday.
 3           How do we anticipate now the completion of the taking
 4  of the evidence in this case?  Will this be concluded by the
 5  end of the day on Thursday do we think?
 6           MR. FLAXMAN:  I believe so.
 7           MS. PAPUSHKEWYCH:  Yes.
 8           THE COURT:  All right.
 9           And I appreciate that you cannot, in a sense, do two
10  things at one time, and I know about the problems of what you
11  are going through in just preparing for this proceeding, but if
12  I asked for these proposed findings of fact and conclusions of
13  law by, say, 9:30 on Friday -- see.
14           All right.  When could -- what would be a fair time to
15  ask with the idea that I am supposed to issue a written opinion
16  deciding this case?  Because somebody is going to take this up
17  on appeal, I would assume.  That is what normally would happen
18  here.
19           MS. PAPUSHKEWYCH:  I'm sorry?
20           THE COURT:  Everybody may want to take an appeal,
21  including others that are not in this particular case.
22           So, the question then is:  Is it possible that we can
23  have an agreement that the city will delay a day or two, so
24  that I will have an opportunity to review proposed findings of
25  fact and conclusions of law and have some time to write a
 
                                                              287
 1  halfway precise opinion, so that it will be available for early
 2  or emergency appeal review?
 3           MS. PAPUSHKEWYCH:  Your Honor, I think we indicated in
 4  our letter to you that, although the promotions were originally
 5  scheduled for March 11th, the department, although --
 6           THE COURT:  Reluctantly.
 7           MS. PAPUSHKEWYCH:  -- reluctantly -- and I'd like to
 8  just put on the record that Mr. Flaxman did not bring this
 9  action until pretty late in the day.  Nevertheless, the
10  department will not promote on the 11th pending your ruling.
11  And Deputy Superintendent Cadigan is in the courtroom today and
12  has indicated at least his ascent to the day or two delay.
13  But, again --
14           THE COURT:  I certainly appreciate the time urgency,
15  but if you can look at it from my viewpoint, I want to prepare
16  -- first of all, I want to make the best decision I can, and I
17  want to try to explain it in an opinion, so that it does not
18  slow down the appellate process, which, to some extent, is
19  going to delay -- or create, certainly, uncertainty, anyway, in
20  the matter.
21           Because I am not satisfied, based on what is presented
22  so far, that, if you consider alternative rulings, exactly how,
23  within the limitations of the law that we obviously have to
24  operate within, there is a way to remedy an error.  And if, in
25  the meantime, appointments have -- for example, if I denied --
 
                                                              288
 1  well, if I grant the preliminary injunction, then no
 2  appointments are made and then we have the problem of 2400 men
 3  with no sergeants and that sort of argument.
 4           And if I deny the motion for preliminary injunction
 5  and people are appointed, it is not going to be the same
 6  situation as was indicated in the Brown case in that, with only
 7  301 people being appointed, there is not any way that -- and,
 8  of course, we do not at this point know who would or would not,
 9  depending upon what alternate method might be used, be selected
10  for promotion or not.
11           But there is not any way to have a perfect resolution
12  of that, unless you deal with the problem of demotion.  And
13  even though we may have the power of demotion, it is indicated
14  by the police department that they do not seek to have a
15  demotion.  So, it seems to me that the best thing we can do is
16  be sure we have enough time to make the best decision we can.
17  And, so, that is the reason for the request for the additional
18  days.
19           All right.  With that in mind, then, I take it you
20  want the weekend?
21           MR. FLAXMAN:  Yes, Judge.
22           THE COURT:  Okay.  I sort of drew that inference from
23  the facial expressions that do not appear on the record.
24           So, if I then would ask that, I will give you until
25  10:00 a.m. on Monday, then?
 
                                                              289
 1           MR. FLAXMAN:  Yes.
 2           THE COURT:  All right.
 3           MS. PAPUSHKEWYCH:  That's fine.
 4           THE COURT:  And, then, we will just make the decision.
 5           And it seems to me that there is no real value in
 6  announcing a decision before we have the opinion that indicates
 7  it and indicates the reasons for the decision.  So, what we
 8  would do then is phone you as soon as we are ready and have you
 9  come in or alert you, if we, you know, know within a few
10  hours.
11           I would not anticipate that there would be any
12  additional argument.  Although, if there is something that I
13  need some additional help on, we will notice you in right away
14  to have some oral argument.  There would not be anything
15  further in writing, it seems to me, to help clarify something
16  for that.
17           All right.  Now, the other thing that we do need to
18  work out, but I will not take the time now, unless it is
19  important, we have to deal with how we are handling the
20  admission of exhibits.  Now, if you have reached an agreement
21  as to what documents are to be received as exhibits, that is
22  ideal, and I would urge --
23           MS. PAPUSHKEWYCH:  We will do that.
24           THE COURT:  -- that every effort be made.  But I am
25  just going along as it is being presented and trying not to
                                        Shead - direct
                                                              290
 1  interfere with each side presenting their case.  So -- but, at
 2  some point, we are going to have to work out the admissibility
 3  of exhibits because I have to know what I can rely on in
 4  reaching a decision.
 5           MS. PAPUSHKEWYCH:  Mr. Flaxman and we can work that
 6  out, I think, your Honor.
 7           THE COURT:  All right.
 8           With that then, you are putting on your subject matter
 9  -- so-called subject matter experts that will be testifying to
10  their activities as sergeants, then; is that right?
11           MR. FLAXMAN:  That's correct.
12           THE COURT:  For job description purposes.
13           All right.  Let us call the next witness, then.
14            BRENDA SHEAD, PLAINTIFFS' WITNESS, SWORN
15           THE COURT:  Please be seated.  Counsel, when you are
16  ready, you may proceed.
17                        DIRECT EXAMINATION
18  BY MR. FLAXMAN:
19  Q.  Could you state your name, please, and spell your last
20  name?
21  A.  My name is Brenda J. Shead, S-h-e-a-d.
22  Q.  And what's your business or occupation?
23  A.  Sergeant of police.
24  Q.  Is that with the Chicago Police Department?
25  A.  Yes, it is.
                                        Shead - direct
                                                              291
 1  Q.  How long have you been a sergeant with the Chicago Police
 2  Department?
 3  A.  Approximately, five-and-a-half years.
 4  Q.  And how long have you been a Chicago police officer?
 5  A.  A little more than 17 years.
 6  Q.  And what's your present assignment?
 7  A.  I'm the neighborhood relations sergeant in the 6th
 8  District.
 9  Q.  Are you familiar with the work that field sergeants do?
10  A.  Yes, I am.
11  Q.  Do field sergeants have in-baskets?
12  A.  No.
13  Q.  Did you take the most recent lieutenant's promotional test?
14  A.  Yes, I did.
15  Q.  And did you take the in-basket simulation on that test?
16  A.  Yes, I did.
17  Q.  Did you have to -- the in-basket simulation was reviewing a
18  group of papers and then answering written short answer
19  questions; is that right?
20  A.  Yes.
21  Q.  Was that at all like the work that you do as a police
22  sergeant?
23  A.  Not --
24           MR. KERTEZ:  Objection, your Honor, to that question.
25  I think we already had a ruling that the subject matter experts
                                        Shead - direct
                                                              292
 1  today may not testify as to the validity of any test component
 2  or to any question, and that is exactly the type of inquiry
 3  that we're getting into right now.
 4           THE COURT:  Yes, I am going to adhere to my previous
 5  decision.  I will sustain the objection now.
 6           I do not wish to limit you in her testifying as to
 7  exactly what her sergeant's position entails, but the idea of
 8  whether the test is valid with respect to her activities or any
 9  testimony with respect to the validity of the test, it seems to
10  me, she should not be able to testify to, unless you can lay a
11  foundation to show that she has sufficient expertise in tests
12  and the creation of tests that would justify her being able to
13  testify as an expert on testing.
14           MR. FLAXMAN:  Well, I'm not sure --
15           THE COURT:  I think we are talking about two different
16  things here.  Job description is one thing.  How you would
17  phrase and formulate tests is another.  And I do not believe
18  there has been any foundation laid showing that she would have
19  the ability to testify to the latter portion, but she clearly
20  can testify to the former.
21           MR. FLAXMAN:  I'm not sure if your Honor understands
22  or maybe it's not clear what the thrust is, but what I would
23  like to do is perhaps ask three or four questions as on an
24  offer of proof to clarify what I am trying to elicit from the
25  witness, and then we can at least have preserved the record.
                                        Shead - direct
                                                              293
 1           THE COURT:  Sure.  You have the right to do that.
 2           MR. FLAXMAN:  Thank you.
 3           THE COURT:  We will, in effect, interrupt -- so, the
 4  objection is sustained.  We will interrupt the testimony now
 5  for an offer of proof, and I will let you inquire of the
 6  witness as to that offer of proof.
 7           MR. KERTEZ:  Your Honor, if I may, before he proceeds,
 8  make one further objection:  Mr. Flaxman appears to be asking
 9  questions concerning the police lieutenant's examination, a
10  test that is not at issue in this case.  And I would object on
11  the grounds that he is following that line and an area that is
12  not of relevance to this case.
13           THE COURT:  I thought we were referring to the
14  sergeant's --
15           MR. FLAXMAN:  No, this is on the lieutenant's test.
16  We've had evidence -- testimony from Dr. Barrett it was the
17  same type of exercise.
18           THE COURT:  But you are talking about the lieutenant's
19  in-basket test?
20           MR. FLAXMAN:  Lieutenant's in-basket, that's right.
21  And I think my four questions on an offer of proof will be
22  quicker than arguing about the objection.
23           THE COURT:  Well, if that is an additional ground, I
24  will sustain it on that ground, as well.
25           MR. KERTEZ:  Yes, Judge.
                                        Shead - direct
                                                              294
 1           THE COURT:  There is no lack of ability to present
 2  evidence as to the exact exam that is involved.  It seems to me
 3  it is not necessary to go to the lieutenant's or captain's or
 4  something else for evidence.
 5           If there was an inability to otherwise present
 6  evidence from which inferences might be drawn, it is one thing;
 7  but, it seems to me that there is not only a lack of a
 8  foundation at this point, but there is a risk that there are
 9  different considerations between the lieutenant's position and
10  the sergeant's position.  In fact, I think the evidence
11  probably is already in that those are different positions that
12  have different requirements to it.  So -- but I will permit you
13  to make your offer of proof.
14           MR. FLAXMAN:  I'd like to make it in a different way.
15  Could I have just one minute to get some exhibits?
16           THE COURT:  Yes.
17           (Brief pause.)
18           THE COURT:  Now, he will be back I know, but am I
19  correct that Mr. Barrett -- or Dr. Barrett is going to be
20  available tomorrow, if necessary, for his testimony?
21           MS. GLINK:  As long as he's on a plane -- out of this
22  courtroom by noon tomorrow.
23           THE COURT:  By noon tomorrow, okay.
24           Excuse me one second.  Does he have to be on a plane
25  at noon tomorrow or does he have to leave the loop?
                                        Shead - direct
                                                              295
 1           MS. GLINK:  He has to leave the loop, I believe.
 2  Leave the loop by noon tomorrow.  He has a 5:00 o'clock class
 3  he needs to be back in Akron to teach.  So, as long as he is on
 4  a flight by 1:00 o'clock or so --
 5           THE COURT:  Okay.
 6           But, of course, the most reliable -- particularly,
 7  with the possible weather, would be the taking the underground
 8  or subway.  I am not -- I think that is something like 48
 9  minutes or something like that.
10           MS. GLINK:  Right.
11           THE COURT:  So, you cannot cut it too close.
12           MS. GLINK:  We will find out what flight he can get on
13  tomorrow, and we will make sure we have that to you.
14           THE COURT:  All right.
15           Hopefully, you will not have to cut it that close, but
16  I want to be sure when I have to be sure that we free him.
17           All right.  You may proceed.
18           MR. FLAXMAN:  We are going to be asking questions
19  about actual written test questions, and I don't know how we
20  want to deal with that.
21           MR. KERTEZ:  Your Honor --
22           THE COURT:  With this witness?
23           MR. FLAXMAN:  That's correct.
24           MR. KERTEZ:  I'm going to object, again.
25           THE COURT:  Why does this not fall within the same
                                      Shead - voir dire
                                                              296
 1  problem?  She can testify, in effect, to a job description,
 2  what she does as a sergeant, but there is no indication of
 3  expertise --
 4           MR. FLAXMAN:  No.  Well --
 5           THE COURT:  -- in formulating --
 6           MR. FLAXMAN:  Well --
 7           THE COURT:  -- questions.
 8           MR. FLAXMAN:  I'm -- that isn't my -- well --
 9           THE COURT:  You can make an offer of proof without
10  going into the detailed language.
11           MR. FLAXMAN:  Okay.
12                      VOIR DIRE EXAMINATION
13  BY MR. FLAXMAN:
14  Q.  Let me show you what's been marked as Plaintiffs' Exhibit
15  54.
16           (Document tendered.)
17           MR. KERTEZ:  I would make a continuing objection,
18  Judge, to the use of these examination questions in testimony.
19           THE COURT:  Well, I take it she is one that signed the
20  form --
21           MR. FLAXMAN:  That's correct.
22           THE COURT:  -- the protective order?
23  BY MR. FLAXMAN:
24  Q.  The first page on question -- on Exhibit 54 says, "Question
25  6"; is that right?
                                      Shead - voir dire
                                                              297
 1  A.  Yes.
 2  Q.  Now, in Question 6 --
 3           THE COURT:  You are able to hold that and make it
 4  convenient for yourself.
 5           THE WITNESS:  I can see it.
 6           THE COURT:  Okay.
 7  BY MR. FLAXMAN:
 8  Q.  Now, Question 6 relates to or has something to do with
 9  something called a confidential number check; is that correct?
10  A.  That is correct.
11  Q.  Is that -- in your work as a sergeant, have you ever done a
12  confidential number check?
13  A.  I have never done one.
14  Q.  Okay.
15           MR. FLAXMAN:  That's the kind of questions I intend to
16  be asking about these test questions, and I think that's -- I'm
17  not sure if your Honor understood what I -- I am not asking
18  whether it's valid or important, just whether it's something
19  that a sergeant does.
20           THE COURT:  I am not even sure it is relevant.  What
21  has that got to do with the validity of a question, the fact
22  that she may never have done a particular thing?  That is the
23  reason why I think you have to have -- somebody that is going
24  to testify as to the validity of a test has to have the
25  knowledge, experience, training to qualify as an expert.
                                      Shead - voir dire
                                                              298
 1           MR. FLAXMAN:  Well --
 2           THE COURT:  It is not even relevant, it seems to me,
 3  the fact that a particular person has not done a particular
 4  thing that may have been involved in the test.  At least, you
 5  have not laid any foundation that it is relevant.  Certainly,
 6  your expert has not said that that is a requirement for the
 7  validity of a question on a test.
 8           MR. FLAXMAN:  Let me continue on my offer of proof.
 9           THE COURT:  Yes, but let us -- we are not going to go
10  through a lengthy process on this.
11           MR. FLAXMAN:  Oh, I --
12           THE COURT:  Okay.
13           You can formulate it in more general terms, so that
14  the offer of proof is sufficient.
15           MR. FLAXMAN:  That's --
16           THE COURT:  Okay.
17           MR. FLAXMAN:  We understand each other, Judge, I
18  think.  I hope.
19  BY MR. FLAXMAN:
20  Q.  Are you familiar with the work that Chicago police
21  sergeants do, in general?
22  A.  Yes, I am.
23  Q.  And how have you become familiar with the work that Chicago
24  police sergeants do?
25  A.  Well, through being on the department for the length of
                                      Shead - voir dire
                                                              299
 1  time that I have been on and actually being out in the field
 2  and working in various districts and various positions.
 3  Q.  Is a confidential number check something that police
 4  sergeants do every day?
 5  A.  No.
 6  Q.  Something that police sergeants do once a month?
 7  A.  No.
 8  Q.  Something that police sergeants do once every five years?
 9  A.  Possibly.
10  Q.  Have you ever spoken to a police sergeant whose done a
11  confidential number check?
12  A.  No.
13  Q.  Okay.
14           Let me ask you to turn the page where you're looking
15  at Question 11.  Are you familiar with the --
16           THE COURT:  We do not need to, I think, be as specific
17  as we were on the last one.  Let us not --
18           MR. FLAXMAN:  Well, let me --
19           THE COURT:  -- destroy -- attempt anyway to try and
20  keep this confidential.
21  BY MR. FLAXMAN:
22  Q.  Are you familiar with the rules and regulations of the
23  Chicago Police Department pertaining to the use of excessive
24  force?
25  A.  Yes.
                                      Shead - voir dire
                                                              300
 1  Q.  And, under those rules, is it permissible to shoot at
 2  someone who has shot at you as a police officer if the --
 3           MR. FLAXMAN:  Well, strike that.
 4  BY MR. FLAXMAN:
 5  Q.  When a citizen shoots at a police officer, is that what's
 6  called a forcible felony?
 7  A.  Yes.
 8  Q.  And is it lawful then to shoot back at that citizen who's
 9  shot at the police officer?
10  A.  Yes.
11           MR. KERTEZ:  Your Honor, for this purpose, I don't
12  really think that it's necessary to have Mr. Flaxman identify
13  the question number.  I think he can do whatever -- I'm
14  assuming at this point he is still going through his offer of
15  proof, but if he'd like, he can ask those same questions in a
16  limited way without, I think, indicating what question number
17  he is doing.  I think that would be a violation of the
18  confidentiality and is unnecessary.
19           THE COURT:  Or he refers to question numbers that he
20  would be asking questions about, but he does not go into what
21  the general subject matter of the question --
22           MR. FLAXMAN:  Well --
23           THE COURT:  -- so that you indicate which questions
24  you would have asked her about.
25  BY MR. FLAXMAN:
                                      Shead - voir dire
                                                              301
 1  Q.  I ask you to turn the page.  Do you see where it says
 2  "Question 15"?
 3  A.  Yes.
 4  Q.  Does Question 15 relate to activities that are done by an
 5  arresting officer?
 6  A.  No.
 7  Q.  Okay.
 8           Does Question 15 ask whether the police officer should
 9  be in two places at once?
10           THE COURT:  Are we talking about the lieutenants or
11  are we talking about the sergeants?
12           MR. FLAXMAN:  These are sergeant questions, Judge.
13           THE COURT:  Okay.
14           Go ahead.
15  BY MR. FLAXMAN:
16  Q.  Does the --
17           THE COURT:  Should we have a sidebar?
18           MR. FLAXMAN:  Yes, I am not sure --
19           THE COURT:  Let us have a sidebar.
20           (Whereupon, the following further proceedings were had
21      at sidebar, to wit:)
22           THE COURT:  I think we are just taking an attorney's
23      offer of proof on the number of questions that you would be
24      asking her about.  I think it is clear that the method that
25      you would be utilizing -- I think the only thing that we
                                           Shead -
                                                              302
 1      need to reserve for the record are which are the specific
 2      question numbers.  What we are doing is giving the subject
 3      matter of all these questions, and it does not take a
 4      rocket scientist to figure out generally what the questions
 5      are going to be.
 6           So, I think we really -- we are going to get into a
 7      real problem then of seeking to close the courtroom and on
 8      and on, and I do not think that is really necessary.  I
 9      think all we need for an offer of proof now is the
10      questions that you would be asking her about.
11           MR. KERTEZ:  The numbers.
12           THE COURT:  Because those would be available to the
13      appellate court.
14           MR. FLAXMAN:  What I would like to somehow get into
15      the record is our explanations for why these questions are
16      bad questions -- I'm using "bad" in a loose sense.
17           THE COURT:  Well, she certainly is not an expert that
18      can testify about that.  You have already had your question
19      expert on.
20           MR. FLAXMAN:  Well, she can testify that there was
21      more than one correct answer.  She can testify that this is
22      something that nobody ever does as a sergeant.  She can
23      testify that detectives do this, not sergeants do that.
24      She can offer evidence along those lines, which I think
25      would be useful for the record.  I'm not -- I understand
                                           Shead -
                                                              303
 1      your Honor's concerns about the confidentiality, but I
 2      would like to --
 3           THE COURT:  Well, all right.  If that is to be her
 4      testimony without you revealing the subject matter of that
 5      question -- she knows the subject matter, you know the
 6      subject matter.  She can testify that sergeants don't do
 7      that or whatever, so that we can confer it.
 8           MS. PAPUSHKEWYCH:  Would it be easier just for you to
 9      refer to the question number and just --
10           THE COURT:  But how many witnesses like this are we
11      going to have?  I am really worried you are never going to
12      finish Dr. Barrett's testimony.  That's --
13           MS. PAPUSHKEWYCH:  You had six.
14           THE COURT:  These witnesses can come on after he is
15      gone.  If he has to be at the airport by noon, he is not
16      going to have a lot of time, even if we started promptly at
17      9:00 because you are going to have further
18      cross-examination of him as you have indicated and --
19           MS. PAPUSHKEWYCH:  We had wanted Dr. Barrett here to
20      --
21           THE COURT:  I am jumping to different subjects.  Let
22      us go back to the suggestion I have that you do not reveal
23      the subject matter of the question.  You just draw her
24      attention to a particular question, and then you ask her,
25      "Now, is that something that a sergeant does," or -- you
                                           Shead -
                                                              304
 1      know, whatever the question is going to be.  And that way
 2      we will have in the offer of proof what her testimony would
 3      be and if the question is identified, so we know what she's
 4      testifying about.  But is that --
 5           MR. FLAXMAN:  It's almost okay.  Let me just --
 6           THE COURT:  Do you think you can do that?
 7           MR. FLAXMAN:  Let me make my offer of proof about
 8      Question 15, which is particularly hard.  What she would
 9      say if we were allowed to ask her --
10           THE COURT:  That is the one she is on right now.
11           MR. FLAXMAN:  -- is that -- Question 15, the correct
12      choice was -- the question asks --
13           THE COURT:  Well, let us not get into it because then
14      we have got to have a seal on the record.
15           MR. KERTEZ:  Right.
16           THE COURT:  It really gets to be complicated.  I do
17      not think that is necessary as long as we identify the
18      question and then the document is made available.
19           MR. FLAXMAN:  Well, maybe I should do this without
20      going into -- I mean, if I don't go into specifics, then
21      they can't cross-examine them about why they think the
22      questions are not --
23           THE COURT:  No, they are not going to have an
24      opportunity to cross-examine on an offer of proof.  At
25      least I am not contemplating that because, I mean, we have
                                           Shead -
                                                              305
 1      to finish this hearing.
 2           MR. KERTEZ:  And, your Honor, may I make one thing
 3      clear:  I am not sure how far Mr. Flaxman is going to go.
 4      If he is going to go through every question he has here, I
 5      think we are going to unnecessarily lengthen the
 6      proceeding, and I am not quite sure what the value of doing
 7      that is going to be.
 8           THE COURT:  Well, he needs to get enough in to
 9      preserve his record, so that the appellate court in
10      reviewing it, assuming that it is an issue -- it may not be
11      an issue, I do not know how I am going to decide this
12      thing, but I just want both sides to be able to make enough
13      of the record so we do not have to have the thing remanded
14      to take further testimony or something, that they can make
15      a meaningful decision on this.
16           MR. KERTEZ:  I understand.
17           MR. FLAXMAN:  What I think we could do, I can make an
18      offer -- a more elaborate offer of proof tomorrow after I
19      have had a chance to write it out and to preserve my
20      record, and I could move on to some other short testimony
21      from the sergeant.
22           THE COURT:  Well, all right, except I do want to have
23      the individual testify as to the offer of proof.
24           MR. FLAXMAN:  How?
25           THE COURT:  As strictly an attorney offer of proof.
                                           Shead -
                                                              306
 1           MS. PAPUSHKEWYCH:  To a certain extent, we want
 2      Dr. Barrett to hear the offer of proof because he is, of
 3      course, the test developer.
 4           THE COURT:  And he gets enough information, also.  All
 5      he needs is the question number, right?
 6           MR. KERTEZ:  Yes.
 7           MS. PAPUSHKEWYCH:  Right, but that's why we wanted
 8      this to be done today.  This is the whole point of having
 9      him sit in on this portion of the testimony.
10           THE COURT:  I forgot about that.  That's right.
11           MS. PAPUSHKEWYCH:  Yes.
12           THE COURT:  All right.
13           How long -- do you have any idea how long this is
14      going to run?  How many witnesses are we going to do this
15      with?
16           MR. FLAXMAN:  Well, I was going to break it up, and I
17      have five sergeants.  I was going to do ten questions of
18      each one.
19           THE COURT:  Okay.
20           MR. FLAXMAN:  I will try --
21           THE COURT:  I am not limiting you.  I am not limiting
22      you.
23           MR. FLAXMAN:  I understand that.
24           THE COURT:  Let us go back then, and we will do the
25      best we can.  But let us not summarize or characterize or
                                      Shead - voir dire
                                                              307
 1      give the subject matter of the question.  Let us just use
 2      the question number and ask the specific question that you
 3      are going to ask.
 4           Does a sergeant do this or is that something a
 5      lieutenant does, but not a sergeant or, you know, detective
 6      does, but not a sergeant or whatever.
 7           MR. FLAXMAN:  I might be -- if I change witnesses, I
 8      might be able to move faster on the offer of proof, but --
 9           THE COURT:  Well, okay.  I am not going to limit you
10      on that, though.
11           MR. FLAXMAN:  Okay.
12           THE COURT:  Okay.  We will go ahead.
13           (Whereupon, the following further proceedings were had
14      in open court, to wit:)
15           THE COURT:  You may proceed as indicated.
16  BY MR. FLAXMAN:
17  Q.  Looking at Question 15, is knowing that the correct answer
18  is "B" something that's important for a sergeant to know?
19  A.  Yes, it is.
20  Q.  Okay.
21           Turn the page to No. 17.  Is the situation that's
22  described in 17 something that a sergeant very seldom comes
23  across?
24  A.  That's true.
25  Q.  And the next page would be 19.  Is Question 19 confusing?
                                      Shead - voir dire
                                                              308
 1  A.  Yes.
 2  Q.  The next page should be Question 23.  Is Question 23
 3  something that a field lieutenant does or is called about?
 4           MR. KERTEZ:  Your Honor, I'm going to object to that
 5  question.  Again, he is asking if that's something that a field
 6  lieutenant does.  This person on the witness stand is not a
 7  lieutenant.
 8           THE COURT:  Did you mean sergeant or --
 9           MR. FLAXMAN:  No, I meant --
10  BY MR. FLAXMAN:
11  Q.  Is Question 23 something that a sergeant does or something
12  that a lieutenant does?
13           MR. KERTEZ:  Again, I would object as to what a
14  lieutenant does.
15           THE COURT:  Objection overruled.  She has indicated
16  enough experience.  For his offer of proof, I will permit her
17  to answer.
18  BY THE WITNESS:
19  A.  Will you repeat the question, please?
20  BY MR. FLAXMAN:
21  Q.  Okay.
22           Question 23, is that -- well, is the correct answer to
23  the question that's posed in Question 23 to call a field
24  lieutenant?
25  A.  True.
                                      Shead - voir dire
                                                              309
 1  Q.  And is that one of the choices?
 2  A.  No.
 3  Q.  Question 24, is the instruction that the sergeant gives to
 4  the police officer in this question what really happens on the
 5  scene?
 6  A.  No, it is not.
 7  Q.  Okay.
 8           And is what really happens on the scene any of the
 9  choices on Question 24?
10  A.  No.
11           MR. KERTEZ:  Objection, your Honor.  At this point, it
12  appears counsel is testifying for the witness asking if this is
13  something, leading this witness throughout the entire
14  examination.
15           THE COURT:  All right.
16           MR. KERTEZ:  And I would object to that.
17           THE COURT:  I will sustain the objection as to the
18  form, although I appreciate the difficulty that has been placed
19  on counsel.  I would just ask that you do your professional
20  best.
21           MR. FLAXMAN:  Thank you, Judge.
22  BY MR. FLAXMAN:
23  Q.  The next page is Question 29; is that right?
24  A.  Yes.
25  Q.  Are choices A and D the events that always occur in this
                                        Shead - cross
                                                              310
 1  situation?
 2  A.  Yes.
 3  Q.  Okay.
 4           MR. FLAXMAN:  I would like to -- I have no further
 5  questions of this witness.
 6           THE COURT:  All right.
 7           Any cross-examination?  This is concluding the offer
 8  of proof, and he has no additional questions.
 9                        CROSS-EXAMINATION
10  BY MR. KERTEZ:
11  Q.  Sgt. Shead, you took the 1994 lieutenant's police
12  examination, didn't you?
13  A.  Yes, I did.
14  Q.  And you weren't promoted to lieutenant based on the results
15  of that examination, were you?
16  A.  No.
17  Q.  And that test was developed by Barrett & Associates; isn't
18  that right?
19  A.  I assume so.
20  Q.  And you're part of a federal lawsuit that challenges the
21  1994 police lieutenant's examination on the grounds that it had
22  adverse impact on minorities; isn't that right?
23  A.  Yes.
24  Q.  And that suit is known as Brown vs. City of Chicago; am I
25  correct?
                                        Shead - cross
                                                              311
 1  A.  Yes.
 2  Q.  And Mr. Flaxman represents you in that lawsuit, doesn't he?
 3  A.  Yes.
 4  Q.  And that's the same Mr. Flaxman who is here today
 5  representing the plaintiffs in Adams; am I right?
 6  A.  Correct.
 7  Q.  Just for the record, we know you never developed any
 8  promotional test for the police department; is that right?
 9  A.  That's right.
10  Q.  You took a test for promotion to sergeant during the time
11  that you've been a sworn member of the Chicago Police
12  Department; am I right?
13  A.  Yes.
14  Q.  And that test was an objective test; was it not?
15  A.  Yes.
16  Q.  And part of that test consisted of a written
17  multiple-choice job knowledge-type examination; am I right?
18  A.  Yes.
19  Q.  And you were promoted to sergeant on the basis of that
20  particular examination; am I correct?
21  A.  Yes.
22  Q.  Were you involved at all in the development of the 1993
23  police sergeant's examination?
24  A.  No.
25  Q.  Sergeant, to perform the job of a Chicago police sergeant,
                                        Shead - cross
                                                              312
 1  is it important to be familiar with the department's general
 2  orders?
 3  A.  Yes.
 4  Q.  And to perform the job of a Chicago police sergeant, is it
 5  important to be familiar with the department's special orders?
 6  A.  Yes.
 7  Q.  And to perform the job of police sergeant in Chicago, is it
 8  important to be familiar with the department's rules and
 9  procedures regarding how the department is organized and
10  operates?
11  A.  Yes.
12  Q.  And to perform the job of a Chicago police sergeant, is it
13  important to be familiar with the Illinois Criminal Code?
14  A.  Yes.
15  Q.  To perform the job of sergeant, is it important to be
16  familiar with the municipal ordinances of Chicago?
17  A.  Yes.
18  Q.  And is oral communication an important skill that sergeants
19  must have?
20  A.  Yes, it is.
21  Q.  Does a Chicago police sergeant monitor and supervise the
22  activities of police officers?
23  A.  Yes.
24  Q.  So, if a police officer has a question regarding the law or
25  regarding an order or policy, then, as a first-line supervisor,
                                        Shead - cross
                                                              313
 1  that officer would generally go to the sergeant for assistance;
 2  am I right?
 3  A.  Yes.
 4  Q.  Does a police sergeant review and forward forms and reports
 5  submitted by police officers?
 6  A.  Yes.
 7  Q.  And does a police sergeant investigate the actions of
 8  police officers?
 9  A.  Yes.
10  Q.  Does a police sergeant assist the watch commander in
11  conducting roll-calls and inspections?
12  A.  Occasionally.
13  Q.  And does a police sergeant conduct watch checkoffs?
14  A.  Yes.
15  Q.  And does a police sergeant at times perform desk duties?
16  A.  Yes.
17  Q.  Does a police sergeant at times conduct medical absence
18  follow-ups?
19  A.  Yes.
20  Q.  And does a police sergeant conduct weekly vehicle
21  inspections?
22  A.  Yes.
23  Q.  Does a police sergeant at times testify in court?
24  A.  Yes.
25  Q.  Depending on your assignment, is it true that Chicago
                                        Shead - cross
                                                              314
 1  police sergeants perform different functions or tasks?
 2  A.  Yes, that's true.
 3  Q.  For example, you said that you were at one point a
 4  neighborhood relations sergeant; is that right?
 5  A.  Yes.
 6  Q.  And during what period of time were you a neighborhood
 7  relations sergeant?
 8  A.  From July, 1994, to the present time.
 9  Q.  Have you ever been a beat sergeant?
10  A.  Yes.
11  Q.  And when were you a beat sergeant?
12  A.  From December 1, 1990, until I was made neighborhood
13  relations sergeant in '94.
14  Q.  And you became a police sergeant in 1990, if I'm correct;
15  is that right?
16  A.  Yes.
17  Q.  You've never been a rapid response sergeant, have you?
18  A.  No.
19  Q.  And you've never been a desk sergeant, have you?
20  A.  Yes, I have been acting desk sergeant.
21  Q.  Have you served as a desk sergeant on a regular basis?
22  A.  Not since 1994.
23  Q.  And the desk assignments you've done have been fill-ins; is
24  that correct?
25  A.  Yes.
                                        Byrd - direct
                                                              315
 1  Q.  You've never been a tactical sergeant, have you?
 2  A.  No.
 3  Q.  You've never been a gang sergeant, have you?
 4  A.  No.
 5           MR. KERTEZ:  I have no further questions at this time.
 6           THE COURT:  All right.
 7           Any additional questions?
 8           MR. FLAXMAN:  No, your Honor.
 9           THE COURT:  All right.
10           That concludes your testimony then, and you are
11  excused.
12           (Witness excused.)
13           THE COURT:  You can call the next.
14           MR. FLAXMAN:  The next witness, your Honor, is
15  Sgt. Doris Byrd, B-y-r-d.
16             DORIS BYRD, PLAINTIFFS' WITNESS, SWORN
17           THE COURT:  Please be seated.  You may proceed.
18           MR. FLAXMAN:  Thank you, your Honor.
19                        DIRECT EXAMINATION
20  BY MR. FLAXMAN:
21  Q.  Could you state your name for us, please?
22  A.  Doris M. Byrd, B-y-r-d.
23  Q.  And what's your business or occupation?
24  A.  I'm a Chicago police sergeant.
25  Q.  For how long have you been a sergeant?
                                        Byrd - direct
                                                              316
 1  A.  Five-and-a-half years.
 2  Q.  And for how long have you been a police officer?
 3  A.  Nineteen years.
 4  Q.  What kind of work do you do as a sergeant?  What kind of
 5  sergeant are you?
 6  A.  Right now I'm a desk sergeant.
 7  Q.  And for how long have you been a desk sergeant?
 8  A.  About eleven months.
 9  Q.  What did you do before becoming a desk sergeant?
10  A.  I was a field sergeant.
11  Q.  And what did you do as a field sergeant?
12  A.  I supervised a sector.
13  Q.  And did you supervise a particular number of officers?
14  A.  The numbers changed from day-to-day.
15  Q.  And what would it range from?
16  A.  Anywhere to maybe six, to maybe twelve.
17  Q.  Are you familiar with the work that a police -- Chicago
18  police sergeant does?
19  A.  Yes, I am.
20  Q.  Now, before you came on the stand here this afternoon, did
21  you have a chance to review what I told you was the in-basket
22  component of the 1993 sergeant's promotional test?
23  A.  Yes, I did.
24  Q.  Had you ever seen that test before?
25  A.  No.
                                       Byrd - voir dire
                                                              317
 1  Q.  And you previously signed a protective order that you won't
 2  disclose the contents of those tests; is that right?
 3  A.  Yes, I did.
 4           MR. KERTEZ:  Your Honor, I am going to raise an
 5  objection, again, here.  We're talking about an in-basket test
 6  and her evaluation of that.  Again, I think that is in
 7  violation of the order that you set yesterday indicating that
 8  --
 9           THE COURT:  Yes, I will sustain the objection, and,
10  again, we will permit a similar offer of proof to what we had
11  finally come down to at the end.
12                      VOIR DIRE EXAMINATION
13  BY MR. FLAXMAN:
14  Q.  Now, when you reviewed the in-basket test, did you look at
15  60 short answer questions?
16  A.  Yes, I did.
17  Q.  And did you look at a great deal of papers?
18  A.  Yes.
19  Q.  Now, in the great deal of papers, did you see a memo from a
20  lieutenant to a sergeant about new duties?
21  A.  Yes.
22  Q.  Have you ever seen a memo of that sort from a lieutenant to
23  a sergeant in your work as a Chicago police sergeant?
24  A.  No.
25  Q.  In the packet of materials for the in-basket, did you see a
                                       Byrd - voir dire
                                                              318
 1  memo to all sergeants from a lieutenant about a blood drive?
 2  A.  Yes.
 3  Q.  In your work as a Chicago police sergeant, have you ever
 4  been given a memo about a blood drive?
 5  A.  No.
 6  Q.  How is information about blood drives disseminated?
 7  A.  They're in the CO book.
 8  Q.  And what is the CO book?
 9  A.  Commanding officer's book, which is read at roll-call by
10  the watch commander.
11  Q.  And the watch commander is someone -- is generally not a
12  sergeant?
13  A.  A lieutenant or a captain.
14  Q.  Now, in that packet of materials, did you see a memo to a
15  sergeant from a lieutenant asking the sergeant to investigate a
16  complaint?
17  A.  Yes.
18  Q.  Is that the kind of document that you've seen in your work
19  as a Chicago police sergeant?
20  A.  On occasions, yes.
21  Q.  And in that packet of materials, was there a memo to all
22  personnel from Lieutenant Graham informing all --
23           THE COURT:  Again, if we can be very general, are
24  there not numbers, or do you not have a number reference that
25  you can refer to?
                                       Byrd - voir dire
                                                              319
 1           MR. FLAXMAN:  I've been sloppy.  Excuse me.  That is
 2  -- I only have one copy.  That's been -- can I represent for
 3  the record what page it is?  I only have one copy of this test,
 4  I believe.
 5           MR. KERTEZ:  Your Honor, if we can make a
 6  clarification at this point.  I'm assuming, again, we are going
 7  through an offer of proof.
 8           THE COURT:  How many pages is it we are dealing with?
 9  Does the defense have an extra copy of this exhibit?
10           MR. FLAXMAN:  I might have one.
11           MR. KERTEZ:  This is the in-basket we are talking
12  about?
13           THE COURT:  Yes.
14           MR. KERTEZ:  Your Honor, just for the record, I want
15  to make clear, again, he is going through his offer of proof
16  here; is that right?
17           THE COURT:  This is his offer of proof.
18           MR. KERTEZ:  All right.
19           THE COURT:  But we are going to do it in an
20  obfuscating manner.
21  BY MR. FLAXMAN:
22  Q.  Let me show you what we'll mark as Plaintiffs' Exhibit 61,
23  I think.
24           (Document tendered.)
25  BY MR. FLAXMAN:
                                       Byrd - voir dire
                                                              320
 1  Q.  And is it correct that's the packet of material that's part
 2  of the packet of materials you looked at this morning?
 3  A.  Yes.
 4  Q.  Okay.
 5           Now, if you look through that, do you see a page that
 6  has a Bates stamp number of A01985?
 7  A.  Yes.
 8  Q.  Is that document the kind of document you've seen in your
 9  work as a Chicago police sergeant?
10  A.  No.
11  Q.  Is the information on that the kind of information that's
12  given to a Chicago police sergeant?
13  A.  No.
14  Q.  Now, if you turn the page to A1986, is that the kind of
15  document you've seen as a Chicago police sergeant?
16  A.  Only if you are -- you were investigating a CR number or a
17  SPAR form and you had sustained the allegations.
18  Q.  Well, okay.
19           What is A01986?  Is it --
20           THE COURT:  Is it necessary to get into all this?  You
21  have her -- this is an offer of proof, she has given her
22  answer.
23           MR. FLAXMAN:  I'm not sure if it's --
24           THE COURT:  Do we need to go any further for the offer
25  of proof?
                                       Byrd - voir dire
                                                              321
 1  BY MR. FLAXMAN:
 2  Q.  Well, is A01986 different than what you would see in
 3  investigating a complaint?
 4  A.  Yes.
 5  Q.  How is it different?
 6  A.  It's different as far as the times, the narrative comments.
 7  Q.  And, then, the next page starts with A01991 through
 8  A02002.  Are those the kinds of documents you see as a Chicago
 9  police sergeant?
10  A.  What was that?  A01999?
11  Q.  No, 1987, the next page?
12  A.  Oh, 1987.
13  Q.  Going onto A2002?
14  A.  Yes, okay, I have it.
15  Q.  Are those --
16  A.  Yes.
17  Q.  Those are --
18           THE COURT:  Last you said 1991.  Now are you going to
19  2002, then?
20           MR. FLAXMAN:  Yes.
21           THE COURT:  Okay.
22  BY THE WITNESS:
23  A.  2002?
24  BY MR. FLAXMAN:
25  Q.  Are those the kind of documents you've seen as a Chicago
                                       Byrd - voir dire
                                                              322
 1  police sergeant?
 2  A.  Yes.
 3  Q.  Now, if you go through this page of this packet, it stops
 4  at -- what's the last page number on your packet?
 5  A.  I have 02045.
 6  Q.  Now, in your work as a Chicago police sergeant, have you
 7  ever been confronted with the papers that are comprised in
 8  Exhibit 61?  That number of papers and asked to answer 60
 9  questions based on what's in the paper?
10  A.  No.
11  Q.  How is answering those 60 questions different than the kind
12  of work you've done as a sergeant?
13           MR. KERTEZ:  Objection.  Again, we are talking about
14  the way a test measures certain things that a sergeant does,
15  and she is not competent to testify to that.
16           THE COURT:  Objection sustained.  We are in the offer
17  of proof.
18           MR. FLAXMAN:  That's a -- I mean --
19           THE COURT:  Okay.
20  BY MR. FLAXMAN:
21  Q.  How is answering those questions different than the work
22  that you've done as a Chicago police sergeant?
23  A.  They're different because there's some of the things that
24  it's not an everyday occurrence.  Some of the things are.
25           Some of the things, as I previously said, would be in
                                         Byrd - cross
                                                              323
 1  a CO book.  You don't get too many memos from the lieutenant.
 2           MR. FLAXMAN:  Can I have just a minute?
 3           THE COURT:  Yes.
 4           (Brief pause.)
 5           MR. FLAXMAN:  I have nothing further from this
 6  witness.
 7           THE COURT:  All right.
 8           Any cross-examination?
 9           MR. KERTEZ:  Yes, your Honor.
10           THE COURT:  Okay.
11                        CROSS-EXAMINATION
12  BY MR. KERTEZ:
13  Q.  Sgt. Byrd --
14  A.  Yes.
15  Q.  -- you took the 1994 police lieutenant examination, didn't
16  you?
17  A.  Yes, I did.
18  Q.  And you weren't promoted to lieutenant based on the results
19  of that examination, were you?
20  A.  No.
21  Q.  And that test was developed by Barrett & Associates; am I
22  right?
23  A.  That's what I'm told.  I don't know for sure.
24  Q.  And you're part of a federal lawsuit that's challenging the
25  1994 police lieutenant examination on the grounds that it has
                                         Byrd - cross
                                                              324
 1  adverse impact --
 2  A.  Yes, I am.
 3  Q.  -- on minorities?
 4           And that's the suit known as Brown vs. The City of
 5  Chicago?
 6  A.  Yes.
 7  Q.  And you're represented in that case by Mr. Flaxman?
 8  A.  Yes.
 9  Q.  And, again, that's the attorney that is here today
10  representing the Adams plaintiffs, right?
11  A.  Yes.
12  Q.  And, just for the record, so we're clear, you don't have
13  any experience in test development; am I right?
14  A.  You're correct.
15  Q.  And you took a test in order to be promoted to sergeant
16  with the Chicago Police Department, didn't you?
17  A.  Yes, I did.
18  Q.  And that was an objective test, wasn't it?
19  A.  Objective in whose opinion?
20  Q.  I mean, it had right and wrong answers?
21  A.  Yes.
22  Q.  And, in fact, part of that was a written multiple-choice
23  test; is that right?
24  A.  Yes, it was.
25  Q.  And you were promoted to sergeant based upon the results of
                                         Byrd - cross
                                                              325
 1  that examination, weren't you?
 2  A.  Yes.
 3  Q.  You were involved in the development of the 1993 police
 4  sergeant examination, weren't you?
 5  A.  No.
 6  Q.  You were not?
 7  A.  No, I was not.
 8  Q.  To perform the job of a Chicago police sergeant, it's
 9  important to be familiar with the department's general orders,
10  isn't it?
11  A.  Yes.
12  Q.  And to perform the job of a Chicago police sergeant, it's
13  important to be familiar with the special orders; is that
14  correct?
15  A.  Yes.
16  Q.  And to perform the job of a Chicago police sergeant, it
17  would be important to be familiar with the rules and procedures
18  regarding how the department operates and functions, right?
19  A.  Yes.
20  Q.  And, also, to perform the job of a Chicago police sergeant,
21  it's important to be familiar with the Illinois Criminal Code,
22  right?
23  A.  Depends on where you work and what you do.
24  Q.  I understand, but there are sergeants that would have to
25  know that, certainly?
                                         Byrd - cross
                                                              326
 1  A.  Yes, there are some sergeants.
 2  Q.  And to perform the job of Chicago police sergeant, it's
 3  important to be familiar with the municipal ordinances of the
 4  city, right?
 5  A.  Once again, depends on what your functions are; yes.
 6  Q.  And oral communication is an important skill that a
 7  sergeant should have, isn't it?
 8  A.  Correct.
 9  Q.  Does a Chicago police sergeant monitor and supervise the
10  activities of police officers?
11  A.  Yes.
12  Q.  So, again, if a police officer has a question regarding the
13  law or regarding policy or procedure, then that particular
14  police officer would go to his or her sergeant for assistance,
15  I would assume; is that correct?
16  A.  Generally speaking, yes.
17  Q.  Does a Chicago sergeant review and forward forms and
18  reports that are submitted by police officers?
19  A.  Now, when you say "forms," what are you referring to?
20  Reports, yes.
21  Q.  All right.
22           And you say reports?
23  A.  Yeah, case reports, yes.
24  Q.  Case reports.
25           And does a police sergeant investigate the actions of
                                         Byrd - cross
                                                              327
 1  police officers?
 2  A.  In some instances, yes.
 3  Q.  And does a police sergeant assist the watch commander in
 4  conducting roll-calls and inspections?  Is that right?
 5  A.  Yes.
 6  Q.  And does a police sergeant conduct watch checkoffs?
 7  A.  Yes.
 8  Q.  And does a police sergeant at times perform desk duties?
 9  A.  Yes.
10  Q.  And does a police sergeant at times conduct medical absence
11  follow-ups?
12  A.  Yes.
13  Q.  And does a police sergeant conduct weekly vehicle
14  inspections?
15  A.  Yes.
16  Q.  And, also, does a police sergeant testify in court at
17  times?
18  A.  Yes.
19  Q.  And depending on your assignment, you perform different
20  functions as a police sergeant; isn't that right?
21  A.  Yes.
22  Q.  For example, you said that you've been -- when you say
23  "field sergeant," I will assume you meant you have been a beat
24  sergeant; is that right?
25  A.  Correct.
                                         Byrd - cross
                                                              328
 1  Q.  And that you've also been a desk sergeant --
 2  A.  Yes.
 3  Q.  -- is that right?
 4           And, now, you've never been a rapid response sergeant,
 5  have you?
 6  A.  No.
 7  Q.  And you've never been a neighborhood relations sergeant,
 8  have you?
 9  A.  No.
10  Q.  You've never been a tactical sergeant, have you?
11  A.  No.
12  Q.  And you've never been a gang sergeant, have you?
13  A.  Yes.
14  Q.  When were you a gang sergeant?
15  A.  For last -- year before last, for two periods.
16  Q.  And how long was that, those two periods?
17  A.  Two periods.
18  Q.  What does that --
19  A.  So, we're talking 56 days.
20  Q.  56 days?
21  A.  Uh-huh.
22  Q.  And, then, you were no longer a gang sergeant, right?
23  A.  I was filling in.
24           MR. KERTEZ:  I have no further questions at this time.
25           THE COURT:  Any further questions?
                                      Carpenter - direct
                                                              329
 1           MR. FLAXMAN:  No redirect.
 2           THE COURT:  All right.
 3           That concludes your testimony, ma'am, and you are
 4  excused.
 5           (Witness excused.)
 6           THE COURT:  You can call the next.
 7         REGINALD CARPENTER, PLAINTIFFS' WITNESS, SWORN
 8           THE COURT:  Please be seated.
 9                        DIRECT EXAMINATION
10  BY MR. FLAXMAN:
11  Q.  State your name and spell your last name?
12  A.  My name is Reginald Carpenter, C-a-r-p-e-n-t-e-r.
13  Q.  And what's your business or occupation?
14  A.  I'm employed by the City of Chicago as a sergeant of
15  police.
16  Q.  And for how long have you been a sergeant?
17  A.  Since 1 May, 1977.
18  Q.  And how long have you been a Chicago police officer?
19  A.  Since 14th of June, 1971.
20  Q.  And what kind of sergeant are you?
21  A.  Well, I think I'm a good sergeant.
22  Q.  What's your particular assignment?
23  A.  Okay.  My particular assignment is classified as a sector
24  sergeant in the 4th District.  That's within the Patrol
25  Division.
                                      Carpenter - direct
                                                              330
 1  Q.  What does that mean, to be a sector sergeant?
 2  A.  It means that, on a daily basis, I have to supervise a
 3  number of units either assigned to a beat car or foot patrol.
 4  If there is not a rapid response sergeant, I also assume
 5  responsibility for some of the units that -- or possibly all of
 6  the units that might be assigned that date to that particular
 7  assignment.
 8           So, in sum, I'm assigned to police officers and
 9  assigned to field duties in my district in my sector.
10  Q.  Before becoming a sector sergeant, was there a particular
11  assignment you had as a sergeant?
12  A.  The assignment has gone through different name changes.
13  It's traditionally been called a field sergeant.  A sector
14  sergeant is a traditional field sergeant.  I have worked in
15  other assignments within the police department that don't have
16  that particular designation.
17  Q.  Are you familiar with the work that a police sergeant does?
18  A.  Oh, yes, sir.
19  Q.  Okay.
20           And you're also a plaintiff in the case challenging
21  the lieutenant's test?
22  A.  Most certainly.
23  Q.  And I represent you in that case; is that right?
24  A.  Yes, sir.
25  Q.  And you've never made up a promotional test for the City of
                                    Carpenter - voir dire
                                                              331
 1  Chicago, have you?
 2  A.  Not -- no, sir.  I've been involved indirectly in that
 3  capacity as ordered.
 4  Q.  Okay.
 5           Do you still have in front of you what's been marked
 6  as Exhibit 54?
 7  A.  Yes, sir.
 8  Q.  And what I'd like you to do is turn until it says "Question
 9  37" on top?
10  A.  Yes, I have it, sir.
11  Q.  Now --
12           THE COURT:  Let us assume the same objection and
13  ruling, and then we can just go into the offer of proof, again.
14                      VOIR DIRE EXAMINATION
15  BY MR. FLAXMAN:
16  Q.  Is the actual practice with respect to the situation that's
17  described in Question 37 different than the written general
18  order?
19  A.  May I take a moment to read the question.
20           (Brief pause.)
21  BY THE WITNESS:
22  A.  My professional opinion is that the answer designated as
23  the correct answer is not the response that a desk sergeant
24  would do.
25  BY MR. FLAXMAN:
                                    Carpenter - voir dire
                                                              332
 1  Q.  And the desk sergeant would do --
 2  A.  The desk --
 3  Q.  Well --
 4           THE COURT:  We do not need to get into the details.
 5  BY MR. FLAXMAN:
 6  Q.  Well, just so it's clear for the record, would the desk
 7  sergeant do the choice that was answered correctly by,
 8  according to the exhibit, 34.27 percent?
 9  A.  No, sir, that's not his function in that particular
10  situation.
11  Q.  Well, which choice, A, B, C, D or E, would the desk
12  sergeant do?
13  A.  The closest answer to that would, in my professional
14  opinion, have to be B.
15  Q.  Okay.
16           Let me ask you to turn the page, and we get to where
17  it says "Question 40"?
18  A.  I have it, sir.
19  Q.  Now, is the actual practice different than Choice E in the
20  situation that's described in Question 40?
21  A.  I need a few seconds to read the question.
22           (Brief pause.)
23  BY THE WITNESS:
24  A.  And your question, again, sir?
25  BY MR. FLAXMAN:
                                    Carpenter - voir dire
                                                              333
 1  Q.  Is the actual practice different than Choice E?
 2  A.  Yes, sir.
 3  Q.  Okay.
 4  A.  That answer, in my professional opinion, is incorrect
 5  totally.
 6  Q.  Okay.
 7           And is one of the answers -- one of the choices, A, B,
 8  C, D or E, the actual answer that's correct based on what
 9  sergeants do in the police department?
10  A.  The next -- the most correct action on the part of the
11  field sergeant would be A.  That would be Step 1.
12  Q.  Okay.
13           Now, I am going to ask you to turn the page to where
14  it says "Question 44."
15  A.  Yes, sir.
16  Q.  Could you read that to yourself, please?
17  A.  Yes, sir.
18           (Brief pause.)
19  BY THE WITNESS:
20  A.  Yes, sir, I read it.
21  BY MR. FLAXMAN:
22  Q.  Well, which is the correct answer, A, B, C, D or E?  Any of
23  them?
24  A.  Yes, sir, I think D is the correct answer.
25  Q.  Okay.
                                    Carpenter - voir dire
                                                              334
 1           Is B something that the police officer does?
 2  A.  The letter "B"?
 3  Q.  Right.
 4  A.  Yes, except for the wording.  He would be definitely
 5  involved in that.
 6  Q.  Is it important for a police sergeant to know the general
 7  orders of the police department of the City of Chicago?
 8  A.  That's -- actually, it's relative.
 9  Q.  Well, is it -- are some general orders more important than
10  others?
11  A.  Yes, sir, some are more as they relate to the daily
12  activities.  My answer is based upon the fact that any general
13  order, special order, department notice, can be overridden by
14  the verbal order of a superior to the person who is supposed to
15  be carrying out the order.  And general orders, special orders,
16  are daily not referred to in practice.  It's what is done on a
17  consistent daily basis that is actually how work is performed,
18  if it's related to the order.
19  Q.  Is sometimes that work that's actually performed different
20  than what's in the order?
21  A.  Oh, definitely, sir.
22           MR. FLAXMAN:  I have nothing further.
23           THE COURT:  All right.
24           Cross-examination.
25           MR. KERTEZ:  Yes, your Honor.
                                      Carpenter - cross
                                                              335
 1                        CROSS-EXAMINATION
 2  BY MR. KERTEZ:
 3  Q.  Now, you took an examination for promotion to sergeant
 4  during the time that you've been on the Chicago Police
 5  Department, didn't you?
 6  A.  Yes, sir.  I wouldn't be here today.
 7  Q.  And, Sergeant, is that correct that test was objective?
 8  A.  There was some professional opinion that it was objective,
 9  I think.
10  Q.  Right.
11  A.  I don't know that I agree with that.
12  Q.  Again, by "objective," I mean, there were right and wrong
13  answers; is that correct?
14  A.  There were true, false or multiple-choice answers that were
15  deemed to be correct, and some were challenged as being
16  incorrect and proven to be incorrect.
17  Q.  And you were promoted --
18           THE COURT:  This test was taken in May?  You took it
19  roughly in May of '77 -- 1977?
20           THE WITNESS:  No, your Honor.  The test that I took
21  was administered -- it was called the 1973 sergeant's
22  promotional exam.
23           THE COURT:  I see, okay.
24           But you became a sergeant in '77?
25           THE WITNESS:  Yes, your Honor.
                                      Carpenter - cross
                                                              336
 1  BY MR. KERTEZ:
 2  Q.  And you were promoted to sergeant based on the results of
 3  that 1973 test, weren't you?
 4  A.  Yes, sir.
 5  Q.  Were you involved in the development of the 1993 police
 6  sergeant's examination?
 7  A.  No, sir, not directly.
 8  Q.  Now, you said that it's relevant to know the general orders
 9  of the Chicago Police Department if you're a sergeant; isn't
10  that what you testified?
11  A.  Yes, sir, to a degree.
12  Q.  Yes.
13           Now, are there different general orders for different
14  districts in the Chicago Police Department?
15  A.  Yes, sir, there are.
16  Q.  So, there are general orders that apply to only one
17  district?
18  A.  There may be portions of an order or an order directly for
19  one particular district, such as the district where we process
20  prisoners at 26th and California or Chicago Avenue District
21  because of their special geographical location, yes, sir.
22  There are different orders for different districts.
23  Q.  Basically, do general orders apply city-wide?
24  A.  Generally speaking, yes, sir.
25  Q.  And how about special orders?  Is it important to be
                                      Carpenter - cross
                                                              337
 1  familiar with the special orders in order to be a sergeant?
 2  A.  Relatively, yes, sir.
 3  Q.  And do those special orders apply city-wide, generally?
 4  A.  Generally, they do.
 5  Q.  And to perform the job of a Chicago police sergeant, is it
 6  important for a sergeant to be familiar with the policies,
 7  rules and procedures of the department and how it operates?
 8  A.  Yes, sir.
 9  Q.  And to perform the job of a Chicago police sergeant, is it
10  important to know the Illinois Criminal Code?
11  A.  Some portions of it, yes, sir.
12  Q.  And, also, to perform the job of a Chicago police sergeant,
13  is it important to perform -- to be familiar with the municipal
14  code?
15  A.  A few portions of it, yes, sir.
16  Q.  And oral communication, I would take it, is an important
17  skill that a sergeant should have?
18  A.  Yes, sir.
19  Q.  Does a Chicago police sergeant monitor and supervise the
20  activities of police officers?
21  A.  Yes, sir.
22  Q.  And does a Chicago police sergeant review and forward forms
23  and reports submitted by police officers?
24  A.  Yes, sir.
25  Q.  And does a Chicago police sergeant investigate the actions
                                      Carpenter - cross
                                                              338
 1  of police officers?
 2  A.  Yes, sir, when assigned to do so.
 3  Q.  Does a Chicago police sergeant assist the watch commander
 4  in conducting a roll-call?
 5  A.  If the watch commander is present, yes, sir; or, if it's
 6  delegated to him, in that respect, he does or she does.
 7  Q.  And does a Chicago police sergeant conduct watch checkoffs?
 8  A.  Yes, sir.
 9  Q.  Does a Chicago police sergeant at times perform desk
10  duties?
11  A.  At times, which are very seldom, yes, sir.
12  Q.  Are there certain sergeants that are assigned desk duties
13  and are known as desk sergeants?
14  A.  What do you mean by the word "certain"?
15  Q.  Are there sergeants in the police department that have as
16  their assignment a desk job, if you know?
17  A.  Yes, sir, but they don't always perform that, even though
18  they're designated as a desk sergeant.
19  Q.  But that would be their general assignment, is that right,
20  for some?
21  A.  On paper, yes, sir; in actuality, no, sir.
22  Q.  Does a sergeant conduct weekly vehicle inspections?
23  A.  Generally, it can be conducted -- it is conducted by a
24  sergeant, but it does not have to be conducted by a sergeant.
25  It can be conducted by a clerk or a police officer, a civilian
                                      Carpenter - cross
                                                              339
 1  or a sworn person.
 2  Q.  All right.
 3           Does a Chicago police sergeant testify in court at
 4  times?
 5  A.  Yes, sir.
 6  Q.  And depending on the assignment that you have, do Chicago
 7  police sergeants have different functions?
 8  A.  Yes, sir.
 9  Q.  For example, you testified here that you were at one point
10  a beat sergeant or field sergeant, let's say?
11  A.  Yes, sir.
12  Q.  And that, at times, you've also filled in as a rapid
13  response sergeant?
14  A.  Since the new concept of CAPS, yes, sir.
15  Q.  But you have filled in in that particular capacity and you
16  have never been assigned as a rapid response sergeant?
17  A.  No, that's incorrect.
18  Q.  You have been, on a full-time basis?
19  A.  To the best of my recollection on paper, no, I've been
20  working mostly relief.  I would be a relief sergeant.  That had
21  -- I was involved in a prototype district initiation of that
22  particular program, and I worked in that capacity, although my
23  designation was desk sergeant.
24  Q.  I see.
25           Now, have you ever served as a neighborhood relations
                                      Carpenter - cross
                                                              340
 1  sergeant?
 2  A.  No, sir.
 3  Q.  And have you ever served as a tactical sergeant?
 4  A.  Yes, sir.
 5  Q.  And when was that?
 6  A.  I served in the Englewood District from January, 1985 to
 7  approximately the middle of 1987 as a tactical sergeant.
 8  Q.  Have you ever been a gang sergeant?
 9  A.  The official designation of gang sergeant, no, sir.  They
10  didn't have -- it was a specialized unit until recently it's
11  become a part of the district function in the tactical unit.
12  So, for practical purposes, yes, I had -- I was a gang sergeant
13  by assigning gang missions.
14  Q.  And for how long was that?
15  A.  During the time I was a tactical sergeant in the Englewood
16  police district.
17  Q.  Have you ever been assigned to any other special units as a
18  sergeant?
19  A.  Yes, sir.
20  Q.  And what units have those been?
21  A.  I was assigned into the auto pound section.
22  Q.  Besides the auto pound, have you ever been assigned to any
23  other specialized units?
24  A.  No, sir.
25           MR. KERTEZ:  I have no further questions at this time.
                                     Carpenter - redirect
                                                              341
 1           THE COURT:  All right.
 2           Any redirect?
 3           MR. FLAXMAN:  Yes.
 4                       REDIRECT EXAMINATION
 5  BY MR. FLAXMAN:
 6  Q.  When you were promoted to sergeant in 19 -- when was it?
 7  19 --
 8  A.  1977, sir.
 9  Q.  Were you promoted ahead of white officers who had received
10  higher scores than you had on the objective test?
11           MR. KERTEZ:  Objection, your Honor.  We're talking
12  about an examination that's not at issue here.  That is not
13  relevant.  The test at issue here is the 1993 police sergeant's
14  examination.
15           THE COURT:  What would be the relevance?
16           MR. FLAXMAN:  Well, the question was asked, "Did you
17  take an objective test to get promoted to sergeant," and I
18  think this is proper redirect that it was an objective test,
19  but there was a quota superimposed on the list.
20           MR. KERTEZ:  Your Honor, that has no bearing on this
21  particular case.
22           THE COURT:  Well, I am not sure that anything about
23  that test is really relevant for purposes of this case; but,
24  since he has opened the door as to the nature of the test, I
25  will overrule the objection and permit you to put in what you
                                     Carpenter - redirect
                                                              342
 1  have indicated will be his answer as to the result of the test
 2  or how the test was used.
 3  BY MR. FLAXMAN:
 4  Q.  Were you promoted to sergeant ahead of white officers who
 5  had received higher scores on the test?
 6  A.  No, sir.
 7  Q.  Okay.
 8           MR. FLAXMAN:  I apologize for misleading the Court
 9  because I didn't --
10  BY MR. FLAXMAN:
11  Q.  When Mr. Kertez asked you about oral communication and you
12  agreed that oral communication was important, what did you mean
13  by "oral communication"?
14  A.  What I mean by "oral communication" is the ability to, you
15  know, speak with anyone that you have to in the capacity of,
16  you know, your work assignment or the task at hand and be able
17  to understand what that person has to say to you.
18           MR. FLAXMAN:  Thank you.
19           THE COURT:  All right.
20           Any additional questions?
21           MR. KERTEZ:  No, your Honor.
22           THE COURT:  All right.
23           That concludes your testimony, and you are excused.
24           (Witness excused.)
25           MR. FLAXMAN:  Could I have about two minutes, Judge?
                                     Carpenter - redirect
                                                              343
 1           THE COURT:  All right.
 2           We will take a short break at this time, ten minutes,
 3  and then we will go on to 4:30.
 4           Does it look like we are going to reach Mr. Barrett?
 5           MR. FLAXMAN:  Yes.
 6           (Whereupon, a recess was taken.)
 7           THE COURT:  Okay.  Court is back it session, and if we
 8  could call the next witness, then.
 9           MR. FLAXMAN:  Next witness, your Honor, is Vance
10  Kimber.
11           THE COURT:  All right.  Sir, if you will come
12  forward.
13          VANCE D. KIMBER, PLAINTIFFS' WITNESS, SWORN
14           THE COURT:  Please be seated.
15           Let me just say one thing before I forget.  To the
16  extent that you are able to do it, it is helpful to get a disk
17  of the proposed findings of fact and conclusions of law.  It
18  saves us time that we are going to need.  Now, you may not be
19  able to do that, and, if you cannot, you cannot.  It is nothing
20  to be concerned about.  But if you are able to do it, it is a
21  convenience.
22           MS. PAPUSHKEWYCH:  We can.
23           MR. FLAXMAN:  I can --
24           THE COURT:  I think I have heard this happened with
25  the other -- in the Brown case, as well.  So, if you cannot,
                                       Kimber - direct
                                                              344
 1  you cannot.  Do not worry about it.  But if there is a way to
 2  do it and it fits our system, it is helpful.
 3           MR. FLAXMAN:  I will see if I can improve my
 4  technology over the weekend.
 5           MS. PAPUSHKEWYCH:  We can.
 6           THE COURT:  We will assign an expert from the city to
 7  tell you how to set up your system.
 8           Okay.  We are all set.  Our witness is under oath, and
 9  you may proceed.
10                        DIRECT EXAMINATION
11  BY MR. FLAXMAN:
12  Q.  Could you state your name, please, and spell your last
13  name?
14  A.  Vance D. Kimber, K-i-m-b-e-r.
15  Q.  And what's your business or occupation?
16  A.  I'm a sergeant of police with the Chicago Police
17  Department.
18  Q.  For how long have you been a sergeant?
19  A.  Since 1985.
20  Q.  And before you were a sergeant, were you a police officer?
21  A.  Yes, I was a patrol specialist and patrolman before I was a
22  sergeant and a police cadet.
23  Q.  Now, before testifying here today, did you have a chance to
24  look at what we will mark as Plaintiffs' Exhibit 62, the oral
25  briefing exercise Form 1-X for Chicago police sergeant?
                                       Kimber - direct
                                                              345
 1  A.  Yes, I did.
 2  Q.  And did you sign the protective order limiting your
 3  disclosure of information you obtained from reviewing that
 4  document?
 5  A.  Yes, I did.
 6  Q.  Now, what kind of work do you do now as sergeant?
 7  A.  I work in management labor affairs in the Chicago Police
 8  Department.
 9  Q.  Is that a job on the street where you arrest people?
10  A.  No, it's inside.
11  Q.  Okay.
12           How long -- have you ever worked on the street?
13  A.  Yes, I have.
14  Q.  When did you work on the street?
15  A.  When -- I was promoted to sergeant in 1985.  In 1985, I
16  work in the 12th police district.  In 1986, '85 -- half part of
17  '86 or '85, I forget what year now -- I worked at Harrison and
18  Kedzie on the West Side, and then I went to 71st and Cottage,
19  the 3rd police district.  And, then, I went to the 911 center,
20  police communications.  Always a supervisor, a supervising
21  sergeant.
22  Q.  As you sit here now, are you familiar with the work that a
23  Chicago police sergeant does?
24  A.  Yes, I am.
25  Q.  Have you ever reviewed or looked at the written test
                                       Kimber - direct
                                                              346
 1  questions that were part of the 1993 sergeant's promotional
 2  test?
 3  A.  Yes, I have.
 4  Q.  And when you looked at them, had you previously signed the
 5  protective order?
 6  A.  Yes, I did.
 7  Q.  Did you ever look at them in the company of other Chicago
 8  police sergeants?
 9  A.  Yes, I did.
10  Q.  Do you remember how many other Chicago police sergeants
11  were there?
12  A.  Approximately six, to the best of my recollection.
13  Q.  And was there anybody else besides the sergeants present?
14  A.  Yes, there was.
15  Q.  And who was that?
16  A.  You yourself, the attorney.
17  Q.  And what happened at this meeting?
18  A.  We reviewed the questions as to whether they were
19  important, unimportant or -- bad questions is the terminology,
20  I think, that was used.
21  Q.  And was there a discussion about each question?
22  A.  Among the supervisors there was.
23           MR. FLAXMAN:  Now, this probably is back to an offer
24  of proof, Judge.
25           THE COURT:  All right.
                                      Kimber - voir dire
                                                              347
 1           MR. KERTEZ:  Your Honor, at this juncture, I think it
 2  would be appropriate for me the to raise the objection that I
 3  made with the other parts of the expectation for this one in
 4  terms of what this witness --
 5           THE COURT:  Right, and I will sustain the objection on
 6  the same basis, and then we have the offer of proof on the same
 7  basis.
 8           MR. FLAXMAN:  And I'll try to be much quicker.
 9                      VOIR DIRE EXAMINATION
10  BY MR. FLAXMAN:
11  Q.  Let me show you what's been marked as Exhibit 54 and ask
12  you, are those the questions that the group consensus was are
13  bad, confusing or incorrectly key questions?
14           (Document tendered.)
15  BY THE WITNESS:
16  A.  That is correct.
17  BY MR. FLAXMAN:
18  Q.  Now, let me show you what's been marked as Plaintiffs'
19  Exhibit --
20           THE COURT:  Now, the fact that all of this goes in
21  does not necessarily mean that I agree that he can testify to
22  what others said at that meeting.
23           MR. FLAXMAN:  No, but I'm trying to just put something
24  in the record about that.  Well --
25           THE COURT:  Okay, but all I am trying to say is there
                                      Kimber - voir dire
                                                              348
 1  is a double level of problem.
 2           MR. FLAXMAN:  Okay.
 3           Well --
 4           THE COURT:  Okay?  Because you are having him testify
 5  as to hearsay statements.
 6           MR. FLAXMAN:  I --
 7           THE COURT:  Okay.  All right.
 8           MR. FLAXMAN:  Could you do all my cases, Judge,
 9  because you will keep me --
10           THE COURT:  No, no, I just want the record to reflect
11  that --
12           MR. FLAXMAN:  Well, I will ask the right questions.
13           THE COURT:  This is an offer of proof.
14  BY MR. FLAXMAN:
15  Q.  Could you look at Exhibit 54.  Is it your opinion as a
16  Chicago police sergeant that the questions in Exhibit 54 are
17  questions that are incorrectly keyed or ambiguous or poorly
18  worded?
19  A.  Yes, it is.
20  Q.  Okay.
21           Now, let me show you what's been marked as Plaintiffs'
22  Exhibit 56.  Could you take a look at that for a minute?
23           (Document tendered.)
24  BY MR. FLAXMAN:
25  Q.  Is Exhibit 56 the questions that you concluded were
                                      Kimber - voir dire
                                                              349
 1  reasonable job-related -- or questions that relate to work
 2  actually performed by a Chicago police officer?
 3  A.  Yes, it is.
 4  Q.  And Exhibit 55, can you take a look at that?
 5           (Document tendered.)
 6  BY MR. FLAXMAN:
 7  Q.  Are those the questions in the third group that you, in
 8  your opinion, are in the third group things that are not
 9  important for a police sergeant to know?
10  A.  That's correct.
11           MR. FLAXMAN:  Thank you.  That concludes my offer of
12  proof on these questions.
13           THE COURT:  Okay.
14           These questions all relate then to Plaintiffs' Exhibit
15  62, the oral briefing exercise?
16           MR. FLAXMAN:  No, no, these are all the written job
17  knowledge questions.
18           THE COURT:  Oh, okay.
19           MR. FLAXMAN:  The 150 short answer questions.
20           THE COURT:  Okay, but you also were going to have him
21  testify to 62, as well?
22           MR. FLAXMAN:  I'm getting back to that.
23           THE COURT:  All right.  Fine.
24  BY MR. FLAXMAN:
25  Q.  Now, when you looked at Exhibit 62 --
                                      Kimber - voir dire
                                                              350
 1  A.  I am sorry, counsel, can you pass it to me?
 2  Q.  Excuse me?
 3  A.  62, I don't have it in front of me.
 4  Q.  Okay.
 5           When you looked at Plaintiffs' 62, the oral briefing
 6  exercise form, did you see the kind of task that a Chicago --
 7  that you've seen Chicago police sergeant do.
 8           MR. KERTEZ:  Your Honor, objection here.  Counsel has
 9  just said that he has concluded his offer of proof, and now
10  he's going into --
11           THE COURT:  No, no.  He is doing two offers of proof.
12  He did an offer of proof as to the first part, in effect.
13           MR. KERTEZ:  So, he is doing an offer of proof at this
14  time?
15           THE COURT:  Now he is on the third part.
16           MR. KERTEZ:  I see.
17           THE COURT:  And, so, the same general objection, in
18  effect, has been made, and it has been sustained; and, the same
19  offer of proof is now being made, again, on the same basis.
20  BY MR. FLAXMAN:
21  Q.  Let me hand you Plaintiffs' Exhibit 62.  Could you tell us
22  whether the activity or the information in Plaintiffs' 62 is
23  the kind of information that a Chicago police sergeant gets in
24  the course of his or her work?
25  A.  Based on what they have on here -- on this example that
                                      Kimber - voir dire
                                                              351
 1  they give on 62, a field sergeant or desk sergeant would not
 2  receive this kind of information to disseminate to his -- for
 3  roll-call training at one time.  The information that he would
 4  receive would be -- the example they refer to in there deals
 5  with a drug-related -- new drug, I believe it was, that just
 6  came out.
 7           This information would be verified by other
 8  departments within the police department and then
 9  caption-sized, in other words, or focussed directly.  So that,
10  when a sergeant -- a roll-call received this, or a field
11  sergeant or desk sergeant received that information, his
12  information that he would pass on would be more of just reading
13  the information from a CO book or from a directive about it.
14           This example assumes that each -- this example that
15  they give assumes that each particular district or unit, for
16  that matter, would set up their own dissemination of
17  information.  And the problem with that, what happens is each
18  unit begins to disseminate their own particular information and
19  you have avenues of arrests that take place because information
20  is disseminated incorrectly or different because each unit does
21  it differently as opposed to receiving from headquarters or the
22  crime lab saying, "That is a problem that we have.  Here's the
23  information that you disseminate."
24  Q.  Is oral communication part of the job of the Chicago police
25  sergeant?
                                   Kimber - voir dire/cross
                                                              352
 1  A.  Yes, it is.
 2  Q.  Is oral communication different than answering the
 3  questions that's in Plaintiffs' Exhibit 62?
 4  A.  Yes, it is.  Oral communication, in my opinion --
 5  professional opinion, is -- deals with a question and answer
 6  response, the listening skills, being able to interpret what
 7  someone says to you and decipher certain information that you
 8  receive.
 9           I did not think that, from my observation of -- my
10  quick preview of this, which was only briefly -- did I surmise
11  that it tested for those -- to the best of my knowledge, tested
12  for those skills.
13           MR. FLAXMAN:  Thank you.  Nothing further.
14           THE COURT:  All right.
15           Cross-examination.
16           MR. KERTEZ:  Yes, Judge.
17                        CROSS-EXAMINATION
18  BY MR. KERTEZ:
19  Q.  Good afternoon, Sgt. Kimber?
20  A.  How are you doing.
21           One second, counsel, let me get a drink of water.
22           (Brief pause.)
23  BY THE WITNESS:
24  A.  Okay.  Go ahead.
25           THE COURT:  Off the record for a second.
                                        Kimber - cross
                                                              353
 1           (Whereupon, a discussion was held off the record.)
 2           THE COURT:  Proceed.
 3  BY MR. KERTEZ:
 4  Q.  Sergeant, you took the 1994 police lieutenant examination,
 5  didn't you?
 6  A.  That's correct.
 7  Q.  And you weren't promoted based on the results of that test,
 8  were you?
 9  A.  Not yet.
10  Q.  And that test was developed by Barrett & Associates; is
11  that right?
12  A.  To the best of my knowledge, that's correct.
13  Q.  And you're part of a federal lawsuit that's challenging the
14  1994 police lieutenant's examination on the grounds that it had
15  adverse impact against minorities; is that right?
16  A.  That is correct.
17  Q.  And that suit is known as Brown vs. City of Chicago?
18  A.  That is correct.
19  Q.  And Mr. Flaxman represents you in that lawsuit, doesn't he?
20  A.  That's correct.
21  Q.  And, in fact, that's the same attorney who is here
22  representing the Adams plaintiffs today, right?
23  A.  That is correct.
24  Q.  Did you receive a letter from Mr. Flaxman asking you to
25  come to a meeting on or about February 24th, to discuss the
                                        Kimber - cross
                                                              354
 1  sergeant's examination?
 2  A.  Yes, I did, to the best of my recollection.  I can't
 3  remember the date.  That sounds correct, though.
 4  Q.  And was that the basis for your coming to the meeting that
 5  you just testified about on direct -- to look at the
 6  examination?
 7  A.  I can't recall exactly what the letter said without having
 8  it in front of me.
 9  Q.  But --
10  A.  But when we -- when I got to the meeting, what we looked at
11  was what I have testified to previously.
12  Q.  And the reason you came was because you received this
13  letter; is that right?
14  A.  That is correct.
15  Q.  And do you know whether the others who came also received
16  the same letter?
17  A.  I'd have to make an assumption.  You wouldn't want me to
18  answer that with an assumption.
19  Q.  No.
20           And, on February 24th, you did go to that meeting to
21  discuss the 1993 sergeant's examination, didn't you?
22  A.  That's correct.
23  Q.  And at that meeting, you received a copy of the written
24  multiple-choice, right, and the answers?
25  A.  I did not receive a copy.  I observed and reviewed a copy
                                        Kimber - cross
                                                              355
 1  of the written multiple-choice, and the answers were on the
 2  same page as the written multiple choice.
 3  Q.  Which is what you signed a protective order indicating that
 4  you would not reveal the contents of --
 5  A.  That is correct.
 6  Q.  -- particular documents; is that right?
 7           Had you ever seen the contents of the written
 8  multiple-choice job knowledge test portion of the 1993
 9  sergeant's examination before that time?
10  A.  No, I had not.  To the best of my knowledge, I hadn't.
11  Q.  And, at that time that you were reviewing those portions of
12  the 1993 sergeant's examination, the multiple choice with the
13  answers that you've described, there were other sergeants in
14  the room with you reviewing those; is that right?
15  A.  That is correct.
16  Q.  And am I correct that, during the time that those
17  discussions were had, that all of the sergeants in that room
18  didn't agree on everything that day, did they?
19  A.  I think no one agrees on everything.
20  Q.  Right.
21           So, the answer is "No," right?
22  A.  Well, would you repeat your question, because --
23  Q.  My question is this, Sergeant:  All those who were
24  discussing that examination on that day at that time didn't
25  agree with everything that was discussed, did they?
                                        Kimber - cross
                                                              356
 1  A.  You mean -- are you referring to the questions or --
 2  Q.  Yes.
 3  A.  To the questions?
 4  Q.  To the questions.
 5  A.  I would say, in general terms, we agreed on what we felt
 6  were good questions, what were bad questions, what were
 7  unimportant questions.
 8  Q.  But there was some disagreement; am I right?
 9  A.  Well, I think I have answered your question.
10  Q.  Yes, you have.
11           Sergeant, I would like you to take a look at this
12  point at what has been labeled as Question No. 114.  I'm not
13  sure -- it's the one that starts Question 6, the documents that
14  you have.
15  A.  I don't have it in front of me, counsel.
16           MR. KERTEZ:  Could we give him another --
17           MR. FLAXMAN:  Judge, are we doing cross-examination on
18  the offer of proof now?
19           THE COURT:  I did not --
20           MR. KERTEZ:  Your Honor --
21           THE COURT:  -- expect that we would do that, and he
22  has not directly covered this, unless it is covered in Exhibits
23  54, 55 and 56.
24           MR. KERTEZ:  Your Honor, I just wanted to ask a couple
25  of quick questions.
                                        Kimber - cross
                                                              357
 1           THE COURT:  Otherwise, the question is whether you are
 2  waiving --
 3           MR. KERTEZ:  No.
 4           THE COURT:  -- the objection.
 5           MR. KERTEZ:  Your Honor, we would not be waiving that
 6  objection.  I would just ask a couple of questions in order to
 7  respond to what offer of proof has been made so far, and it
 8  will be very brief.
 9           THE COURT:  You mean, indicating that, on some other
10  basis, it would not be admissible or --
11           MR. KERTEZ:  Yes.
12           THE COURT:  -- what?  You are not going to argue --
13           MR. KERTEZ:  We will withdraw that line of
14  questioning.
15           THE COURT:  I am not going to consider the merits of
16  the offer of proof, since I have not let it in evidence.
17           MR. KERTEZ:  I understand, Judge.
18           THE COURT:  If it has something to do with
19  admissibility, I would permit you to go forward, but I do not
20  think we ought to get to the merits because it is not going to
21  be considered.
22           MR. KERTEZ:  I understand.  I understand, Judge.  I
23  will withdraw that line of questioning.
24  BY MR. KERTEZ:
25  Q.  Sgt. Kimber, in that letter you received from Mr. Flaxman,
                                        Kimber - cross
                                                              358
 1  that letter indicated that the group was going to get together
 2  to see if or how they could reach a score of 88 out of 150
 3  questions on the written portion of the test; isn't that what
 4  the letter said in part?
 5  A.  I don't recall reading that on the letter.
 6  Q.  Would viewing the letter refresh your recollection?
 7  A.  Yes, it would.
 8           MR. FLAXMAN:  Judge, I think we're continuing to
 9  cross-examine about the offer of proof.
10           THE COURT:  I have no way of --
11           MR. FLAXMAN:  I'm not sure --
12           THE COURT:  I have no way of knowing.  Normally, we do
13  not have cross-examination on an offer of proof --
14           MR. KERTEZ:  No, Judge.
15           THE COURT:  -- except as to admissibility.  I mean,
16  that is the crux of the issue.
17           Now, I suppose, in very general terms, if the entire
18  offer of proof is misleading -- is claimed to be misleading in
19  some way as argument, you can argue that, but it just seems to
20  me -- we are short of time, anyway -- we really should not get
21  into cross-examination on the merits of the contents of the
22  offer of proof.
23           MR. KERTEZ:  I will withdraw it then, your Honor.
24           THE COURT:  And the record will reflect that you have
25  not had the opportunity to cross-examine, of course, on the
                                        Kimber - cross
                                                              359
 1  offer of proof.
 2           MR. KERTEZ:  Thank you, Judge.
 3           THE COURT:  And, so, anybody reviewing it should not
 4  consider that there are no -- that there is no ability to
 5  properly cross-examine.
 6           Okay.
 7  BY MR. KERTEZ:
 8  Q.  Sgt. Kimber, you never developed any promotional
 9  examinations, have you?
10  A.  No, I have not.
11           MR. FLAXMAN:  Again, Judge, this goes to the offer of
12  proof.  I think all of Sgt. Kimber's testimony --
13           THE COURT:  Well, he can ask that.  That is okay.
14           MR. FLAXMAN:  All right.
15  BY MR. KERTEZ:
16  Q.  Sgt. Kimber --
17           THE COURT:  Unless you want to stipulate to it.  Then
18  we can save some time.
19           MR. FLAXMAN:  I think he is done.
20           THE COURT:  Okay.
21           Let us go ahead.
22  BY MR. KERTEZ:
23  Q.  Sgt. Kimber, do you belong to any police organizations?
24  A.  Yes, I do.
25  Q.  And can you tell me what police organizations those are?
                                        Kimber - cross
                                                              360
 1  A.  I belong to the Guardians police organization.
 2  Q.  And do you currently hold any offices in the Guardians
 3  police organization?
 4  A.  Yes, I do.
 5  Q.  And could you tell me what is the membership in that --
 6  Guardians?  What are the police officers who are comprised in
 7  that organization?
 8           THE COURT:  Are you talking about the position they
 9  told in the police force?
10           MR. KERTEZ:  No, I am asking if it has a particular --
11  what kind of group it is.
12  BY THE WITNESS:
13  A.  Police officers.
14  BY MR. KERTEZ:
15  Q.  All police officers?
16  A.  Yes, it is.
17  Q.  White police officers?
18  A.  No, it is not.
19  Q.  Is it --
20  A.  Oh, wait a minute.  To the best of my knowledge, no.
21  Q.  There are no white police officers?
22  A.  To the best of my knowledge, no.
23  Q.  Is it an African-American organization?
24  A.  Yes, it is.
25  Q.  And I believe you said you were the president; is that
                                        Kimber - cross
                                                              361
 1  right?
 2  A.  I didn't say that.  You didn't ask the question.
 3  Q.  You are the president of that organization; is that right?
 4  A.  That is correct.
 5  Q.  And as a president of the Guardians, did you testify
 6  several years ago before the mayor's Blue Ribbon Panel on
 7  police promotional testing?
 8  A.  I was called by corporation counsel Susan Sher to testify,
 9  that's correct.
10  Q.  Yes.
11           And can you tell us a little bit about what the Blue
12  Ribbon Panel was all about, if you know?
13           MR. FLAXMAN:  This is beyond the scope.  Objection.
14  This is beyond the scope of direct.
15           THE COURT:  Well --
16           MR. KERTEZ:  Your Honor, I think --
17           THE COURT:  How lengthy is this going to be?
18           MR. KERTEZ:  This will be very short.
19           THE COURT:  Because, otherwise, he has the right to
20  call him back, again.
21           MR. KERTEZ:  It's a couple of questions, your Honor.
22  That will be all.
23  BY THE WITNESS:
24  A.  I'm sorry, counsel?
25           MR. KERTEZ:  I will withdraw my question and try to
                                        Kimber - cross
                                                              362
 1  finish up.
 2           THE COURT:  I will permit you to ask the question, but
 3  you have to ask it as though he is being called on direct.
 4           MR. KERTEZ:  All right.
 5           Your Honor, I will withdraw the question and continue.
 6  BY MR. KERTEZ:
 7  Q.  Sgt. Kimber, did you recommend to the Blue Ribbon Panel
 8  that an organization outside the city be involved with Chicago
 9  police promotional tests?
10  A.  I think I made several recommendations, one of which may
11  have been that.  But without actually seeing -- and those
12  recommendations were made verbally, not in writing.  And I did
13  not receive a response back.  So, without actually seeing what
14  recommendations I made at that time -- because what year was
15  that?  19 -- can you refresh my memory what year it was?
16  Q.  It would have been approximately 1990.
17  A.  Yeah, so that's six years ago.
18  Q.  I understand.
19  A.  Okay.
20  Q.  And, Sergeant, do you favor objective examinations for
21  promotion to the higher ranks of the police department?
22           MR. FLAXMAN:  Objection.  Relevance.
23           THE COURT:  Objection overruled.  He may answer.
24  BY THE WITNESS:
25  A.  I'm sorry, counsel, can you explain what you mean by
                                        Kimber - cross
                                                              363
 1  "objective"?
 2  BY MR. KERTEZ:
 3  Q.  I mean, questions where the answers are right or wrong?
 4  A.  Would it just be a right and wrong question test or would
 5  it be an oral test performance --
 6  Q.  I mean, are you in favor of having as part of a police
 7  promotional process objective tests?
 8  A.  Part of the process would have to be right and wrong
 9  answers.
10  Q.  So, the answer would be "Yes," then, to that?
11  A.  Part of the test would have to be right and wrong answers.
12  That's my response.
13  Q.  Okay.
14           Were you involved at all in the development of
15  Dr. Barrett's 1993 police sergeant's examination?
16  A.  No, I was not.
17  Q.  To perform the job of a Chicago police sergeant, is it
18  important to be familiar with the department's general orders?
19  A.  What degree of -- when you say "familiar," you mean, every
20  order precise detail; or, do you mean just some knowledge of
21  what the concept is.
22  Q.  I mean, to know what the general orders are.
23  A.  To have some knowledge of what the concept is, I think it
24  is.
25  Q.  And would you also agree --
                                        Kimber - cross
                                                              364
 1           THE COURT:  Well, that is not what he asked, though.
 2           THE WITNESS:  Okay.
 3           THE COURT:  He asked the actual content of the orders,
 4  as I understand.
 5           MR. KERTEZ:  Yes.
 6           THE COURT:  So, why do you not restate the question
 7  for him.
 8           MR. KERTEZ:  All right.
 9  BY MR. KERTEZ:
10  Q.  To perform the job of a Chicago police sergeant, is it
11  important for you to know what the general orders say?
12  A.  What the content is, some knowledge of the content.
13  Q.  All right.
14           And to perform the job of a Chicago police sergeant,
15  would the same be true for special orders?
16  A.  Correct.
17  Q.  And to perform the job of police sergeant, would it be
18  important to know -- be familiar with the department's rules
19  and procedures regarding their policy and practice?
20  A.  Correct.
21  Q.  To perform the job of a Chicago police sergeant, is it
22  important to be familiar with the Illinois Criminal Code?
23  A.  Correct.
24  Q.  And to perform the job of a Chicago police sergeant, is it
25  important to be familiar with sections of the municipal code?
                                        Kimber - cross
                                                              365
 1  A.  Which sections are you referring to?
 2  Q.  Certain -- that there are sections of the municipal code
 3  that a sergeant should be familiar with; is that right?
 4  A.  Some sections, yes.
 5  Q.  My question is --
 6  A.  I don't understand the question which --
 7  Q.  I'm just saying do you need to know some sections?  Are
 8  there sections of the municipal code you need to know as a
 9  police sergeant?
10  A.  Yes, there would be.
11  Q.  And oral communication is important for a Chicago police
12  sergeant; is that correct?
13  A.  Correct.
14  Q.  And does a Chicago police sergeant monitor and supervise
15  the activities of police officers?
16  A.  Yes, he does.
17  Q.  And --
18           MR. FLAXMAN:  Judge, we will stipulate that he will
19  answer these questions the same way the other officers have
20  answered them.  This is --
21           MR. KERTEZ:  Your Honor, I am almost finished with
22  this.  I think I can get this done fairly quickly.
23           THE COURT:  All right.
24  BY MR. KERTEZ:
25  Q.  Does a Chicago police sergeant review and forward forms
                                        Kimber - cross
                                                              366
 1  submitted by police officers?
 2  A.  Yes, he does.
 3  Q.  And does a Chicago sergeant investigate the actions of
 4  police officers?
 5  A.  Yes, he does.
 6  Q.  And does a Chicago sergeant assist the watch commander in
 7  conducting roll-calls and inspections?
 8  A.  When required to do so.
 9  Q.  And does a Chicago sergeant conduct watch checkoffs?
10  A.  Roll-call checkoffs, yes.
11  Q.  And does a sergeant at times perform desk duties?
12  A.  Yes, he does.
13  Q.  A does a sergeant at times conduct medical absence
14  follow-ups?
15  A.  Yes, he does.
16  Q.  And does a sergeant conduct weekly vehicle inspections?
17  A.  At times he does.
18  Q.  And does a sergeant occasionally testify in court?
19  A.  Yes, he does.
20  Q.  Now, depending on what your assignment is, sergeants
21  generally perform different functions; isn't that right?
22  A.  That is correct.
23  Q.  And you testified that, at one point, you were a field
24  sergeant a number of years back, and that, currently, you're in
25  an inside job in management and labor affairs; isn't that
                                        Kimber - cross
                                                              367
 1  right?
 2  A.  That is correct.
 3  Q.  And that's what you've done for a number of years now at
 4  this point, correct?
 5  A.  That is correct.
 6  Q.  Have you ever been a rapid response sergeant?
 7  A.  When I was a field sergeant, the terminology was not rapid
 8  response.  To the best of my recollection, that terminology was
 9  not used at that time.
10  Q.  But you have never been a rapid response sergeant; is that
11  correct?
12  A.  Well, in response to your question, when I worked in 11th
13  District, at times, I would be the only sergeant working the
14  street, period.  So, I guess the answer to that would be that
15  would be a rapid response, if that was the terminology at the
16  time, but it was not.  But if I was the only sergeant working
17  the street, I was whatever they wanted to call the sergeant.
18  Q.  So, on a fill-in limited basis, you may have performed some
19  of those duties?
20  A.  On a daily basis, when I worked in 11.  We were very short
21  of sergeants.
22  Q.  I see.
23           Have you ever been a neighborhood relations sergeant?
24  A.  No, I have not.
25  Q.  And have you ever been a tactical sergeant?
                                      Kimber - redirect
                                                              368
 1  A.  No, I have not.
 2  Q.  And have you ever been a gang sergeant?
 3  A.  No, I have not.
 4           MR. KERTEZ:  I have no further questions at this time.
 5           THE COURT:  Any additional questions?
 6           MR. FLAXMAN:  Yes.
 7                       REDIRECT EXAMINATION
 8  BY MR. FLAXMAN:
 9  Q.  Does a Chicago police sergeant have to know what precise
10  felony charges an arrestee should be charged with?
11  A.  No.  As I said, just a general concept and knowledge of
12  what the orders and the Illinois state statute deals with.  As
13  with lawyers and attorneys, you refer to your bible, so to
14  speak, to the constitution and to the law.  A sergeant would
15  also do the same thing.
16           What happens is you bring an arrestee into custody.
17  And once he is brought into custody, you contact the
18  detectives, and the detectives would contact the State's
19  Attorney.  And, then, charges would be approved, and the final
20  approval of charges would come with the watch commander.
21  Q.  But is the field sergeant involved in deciding what felony
22  charge an arrestee should be charged with?
23  A.  No.  The only way a field sergeant would be involved is
24  after he would come into the station and the detectives have
25  been contacted and the State's Attorney has been contacted.
                                      Kimber - redirect
                                                              369
 1  Only then would a sergeant have maybe input as to what the
 2  final felony charges would be, and that input would just be
 3  dialogue as to his opinion on what he thinks the charges should
 4  be.
 5  Q.  Detectives are police officers who are primarily involved
 6  in deciding or recommending to the State's Attorney what felony
 7  charge --
 8  A.  Yes, the initial recommendation comes directly from the
 9  detectives that would be assigned to the case once they had
10  been called by the patrol unit that made the initial arrest.
11           MR. FLAXMAN:  Thank you.  Nothing further.
12           MR. KERTEZ:  Nothing further.
13           MS. PAPUSHKEWYCH:  Nothing further from us.
14           THE COURT:  Are you sure?
15           MR. KERTEZ:  Nothing further.
16           THE COURT:  All set, okay.
17           You are excused.
18           THE WITNESS:  Thank you very much.
19           (Witness excused.)
20           THE COURT:  Let us call the next.
21           MR. FLAXMAN:  I think we can take Dr. Barrett out of
22  order now.
23           THE COURT:  Are we ready now?  Okay.
24           Are you ready --
25           MS. PAPUSHKEWYCH:  Yes.
                                       Barrett - direct
                                                              370
 1           THE COURT:  -- to proceed?
 2           MS. PAPUSHKEWYCH:  Yes.
 3           THE COURT:  Okay.
 4           Since you are in a new witness role, if you will raise
 5  your right hand now.
 6         DR. GERALD BARRETT, DEFENDANT'S WITNESS, SWORN
 7           THE COURT:  Counsel, you may proceed when ready.
 8           MS. GLINK:  Thank you, your Honor.
 9           THE COURT:  And, again, the record should reflect we
10  are taking this witness out of order by agreement.
11                        DIRECT EXAMINATION
12  BY MS. GLINK:
13  Q.  Dr. Barrett, I am going to show you what's been marked as
14  Defendant's Exhibit I.
15           (Document tendered.)
16  BY MS. GLINK:
17  Q.  I have marked it for Defendant's I just for clarity's sake
18  because the other exhibits, A through H, were attached to our
19  initial submissions to the Court.
20           (Document tendered to the Court.)
21  BY MS. GLINK:
22  Q.  Dr. Barrett, is this a current master vitae or curriculum
23  vitae of you and your work that you've done in your career?
24  A.  Yes.
25           MS. GLINK:  And for sake of speed, your Honor, I'm
                                       Barrett - direct
                                                              371
 1  going to ask you to take judicial notice of this.
 2  BY MS. GLINK:
 3  Q.  Does this curriculum vitae set forth your educational
 4  background?
 5           MR. FLAXMAN:  I don't think judicial notice is the
 6  right concept, but --
 7           THE COURT:  Well, by agreement.
 8           MS. GLINK:  By agreement.
 9           THE COURT:  We will receive in evidence both of the
10  curriculum vitaes or master vitaes for each.
11           (Whereupon said document, previously marked as
12      Defendant's Exhibit I for identification, was received in
13      evidence.)
14           MS. GLINK:  Excuse me, your Honor.
15           THE COURT:  All right.
16           That is fine.  By agreement, they will both be
17  received in evidence at this time.
18  BY MS. GLINK:
19  Q.  And this curriculum vitae sets forth your educational
20  background?
21  A.  Yes.
22  Q.  And it sets forth your professional employment history;
23  does it not?
24  A.  Yes.
25  Q.  And it further sets forth all of the courses that you've
                                       Barrett - direct
                                                              372
 1  taught in industrial psychology and other related course areas?
 2  A.  Yes.
 3  Q.  As well, it also includes all of your publications that you
 4  have been published in various journals; is that correct?
 5  A.  Yes.
 6  Q.  And it also sets forth the professional organizations of
 7  which you're a member?
 8  A.  Yes.
 9  Q.  As well as firms in which you've consulted for?
10  A.  Yes.
11  Q.  And your business is Barrett & Associates?
12  A.  Yes.
13  Q.  Dr. Barrett, I'm going to briefly ask you about your
14  history developing promotional examinations.
15           How long have you been in the business of developing
16  promotional examinations?
17  A.  In the public sector, since 1973.
18  Q.  And how long have you -- have you ever developed any
19  promotional examinations for municipal or local governments?
20  A.  Yes.
21  Q.  And have you ever developed any promotional examinations in
22  the safety force fields, either police or fire, for these
23  municipal governments?
24  A.  Yes.
25  Q.  When did you begin developing police and fire promotional
                                       Barrett - direct
                                                              373
 1  tests?
 2  A.  1973.
 3  Q.  And, since 1973, how many promotional examinations have you
 4  developed?
 5  A.  I don't have an exact count, but it might be a dozen or
 6  more a year at times.
 7  Q.  And how many --
 8  A.  So, it's continual, basically.
 9  Q.  And how many of those examinations were examinations
10  involving police or fire departments?
11  A.  The majority were involving police or fire departments.
12  Q.  And these examinations that you developed, what type of
13  examinations did you develop for these municipal organizations?
14  A.  Well, they were mostly content-valid tests for promotion.
15  Q.  When you say "content-valid tests," what do you mean by
16  that?
17  A.  That is a professional process used to validate a test.
18  There are three recognized ways of validating tests.  Content
19  validity is one of the recognized ways of validating a test.
20  Basically, you're talking about a similarity between the test
21  and the actual job.
22  Q.  And are there professional guidelines that you follow when
23  you're developing a selection battery?
24  A.  Yes.
25  Q.  And are those -- what are those guidelines?
                                       Barrett - direct
                                                              374
 1  A.  There are mainly two.  One is called the Standards for
 2  Psychological Testing --
 3           THE COURT:  If you could just slow down when you are
 4  giving a title like that because adrenaline flows and the speed
 5  by which we all articulate speeds up and it is pretty hard on
 6  the court reporter.  So, if you could repeat that last
 7  reference now.
 8  BY THE WITNESS:
 9  A.  One is called the Standards.  And the second is the
10  Principles.  It's two different documents put out by the
11  American Psychological Association; and, also, the Principles
12  is published by Division 14, Society of Industrial and
13  Organizational Psychology.
14  BY MS. GLINK:
15  Q.  Are there any other guidelines that you follow when you're
16  preparing a promotional examination?
17  A.  There's the Uniform Guidelines of 1978.
18  Q.  And are those the Uniform Guidelines on Employee Selection
19  Procedure which we have mentioned in this courtroom over the
20  course of this hearing?
21  A.  Yes.
22  Q.  Dr. Barrett, you mentioned the other day that you have a
23  juris doctor degree; is that correct?
24  A.  Yes.
25  Q.  Why did you get your law degree?
                                       Barrett - direct
                                                              375
 1           MR. FLAXMAN:  Objection.  Relevance.
 2           THE COURT:  Well, it has been referred to previously.
 3  I am not sure whether -- well, to the extent that his, both
 4  credibility, as well as his abilities, is being challenged by
 5  this test -- by this lawsuit, it seems to me any experience
 6  that he has is probably relevant.
 7           I will overrule the objection and permit him to
 8  answer.
 9  BY MS. GLINK:
10  Q.  Go ahead.
11  A.  I've been teaching courses in a Ph.D. program in industrial
12  psychology since 1968.  And, since the passage of the Civil
13  Rights Act of 1964 and the accompanying court decisions, it was
14  clear that legal concepts are becoming very important in the
15  field of personnel psychology; and, in particular, selection
16  processes and selection testing.
17           So, I was realizing I was teaching seminars and
18  courses for Ph.D. students which involved legal concepts, but I
19  didn't really understand the legal concepts.  So, my basic
20  motivation was, in effect, to improve my teaching and research;
21  and, at the same time, in terms of my practical applied work,
22  enable me to put the selection processes and testing process
23  within the appropriate legal framework.  I could, in effect,
24  review court cases and have some understanding of the legal
25  concepts and how it had an impact upon my field.
                                       Barrett - direct
                                                              376
 1  Q.  And in what ways have legal concepts impacted upon your
 2  field?
 3  A.  It's introduced new concepts, such as adverse impact, for
 4  example, and there are numerous court rulings concerning the
 5  testing process.
 6  Q.  The Uniform Guidelines on Employee Selection Procedure, do
 7  they recognize or identify any particular method of validation?
 8  A.  They recognize three types of validation approaches.
 9  Q.  And what are those three types of validation?
10  A.  Construct, content validity and criterion-related validity.
11  Q.  And we have touched upon these three types of validation,
12  haven't we, over the last few days?
13  A.  Yes.
14  Q.  Which, if any, of these validation strategies are
15  considered, in your opinion, to be better than the others?
16  A.  They're all considered to be equal under the guidelines.
17  Q.  How about the professional standards in your field?  Do
18  they distinguish between the validation studies?
19  A.  No.
20  Q.  And which validation study do you generally use when
21  developing a selection or promotional examination for a police
22  or fire promotional examination?
23  A.  We use the content validity approach.
24  Q.  And why do you use such an approach?
25  A.  Because it's well-accepted by the safety forces first;
                                       Barrett - direct
                                                              377
 1  second, it's an obvious way to show job relevance; and, third,
 2  it's extremely difficult to do a criterion-related study
 3  anymore in the safety forces.
 4  Q.  And can you -- I know we've touched upon this, but can you
 5  briefly describe why it's difficult to conduct such a study?
 6  A.  Well, the typical study which might be of value to an
 7  organization would be what's called a concurrent validation
 8  study, where you test incumbents and, at the same time, you
 9  obtain a measure of their job performance.
10           As I have previously testified, you have two main
11  problems with that technique, at least.  One is confidentiality
12  of the testing process.  Once the incumbents have taken the
13  test, of course, they could reveal to others the contents of
14  the test battery, thereby destroying the validity.
15           And, second, it is now difficult to obtain from
16  supervisors good measures of job performance.
17           Those are the two main issues -- or other technical
18  issues, but those are the two main issues.
19  Q.  Have any of the --
20           THE COURT:  He may have covered it before, but I -- it
21  would be of interest to know why it is difficult to get from
22  supervisors an accurate measure of performance.
23           THE WITNESS:  Because they -- particularly, in the
24  safety forces, there have been so much litigation since 1973 in
25  most cities in which I work.  There has been consistent and
                                       Barrett - direct
                                                              378
 1  constant litigation.  And the supervisors realize that they may
 2  be accused of favoritism, bias, perhaps even discrimination, in
 3  terms of the responses.
 4           They also know that their responses can be revealed to
 5  the court, that they are -- it's not kept confidential.  So,
 6  you have this actual concern by the supervisors about what they
 7  may say or do concerning their people.
 8  BY MS. GLINK:
 9  Q.  You mentioned litigation, Dr. Barrett.  Have any of the
10  promotional examinations that you've developed for fire or
11  police departments been challenged in court proceedings under
12  Title VII?
13           MR. FLAXMAN:  Objection.  Relevance.
14           THE COURT:  Yes, I have difficulty knowing what the
15  relevance of this would be with respect to this particular
16  test.
17           MS. GLINK:  I'm trying to establish, your Honor, that
18  Dr. Barrett has -- we make a claim that he has followed all the
19  of the procedures and policies and practices and standards set
20  forth, and that he is a test developer who knows how to develop
21  a valid content-valid test; and, that, in the past, his tests
22  have been --
23           THE COURT:  Are there court opinions that say that he
24  has developed a valid test in a particular city or something?
25  Is that what you are seeking to bring out?
                                       Barrett - direct
                                                              379
 1           MS. GLINK:  Yes, your Honor.
 2           THE COURT:  Because, I mean, I have no idea about how
 3  many cases or anything else, but disposition of cases often
 4  relate to many things; in some cases, not even the merits.  So,
 5  it would seem to me that the mere fact that that is the case,
 6  that he has never lost a case, does not necessarily mean
 7  anything.
 8           If there is an opinion that has been written, that may
 9  be relevant, if it relates to either-or any of the principles
10  that he is espousing and finds that those principles are valid
11  or -- I mean, I just do not know what we are dealing with
12  here.
13           But so far as the fact of the result of litigation per
14  se, I do not think that is sufficient to be relevant.  There
15  has to be something beyond that.
16           MS. GLINK:  Are you --
17           THE COURT:  Now, to the extent, if you would represent
18  to me that there are opinions or there is something that goes
19  beyond the mere either dismissal or judgment in a case, that
20  would be -- because I doubt it if there is a suit that has been
21  an affirmative suit, where, in effect, his test would get a
22  judgment in favor of it.  It is more somebody is suing to
23  recover, and either they recover or they do not recover and his
24  test was involved.  I take it that is the more likely result.
25           MS. GLINK:  Generally, what I was trying to elicit,
                                       Barrett - direct
                                                              380
 1  your Honor, is that the validity of his tests have been
 2  challenged.  And that is really all I was trying -- and that is
 3  all I was trying to elicit, testimony along those lines.
 4           THE COURT:  As I say, if there is an opinion that
 5  finds a particular test to be valid, because of content
 6  validity or whatever validity, I think that has probably got
 7  some relevance, to the extent that there would be testimony to
 8  indicate that same basic principles were utilized in that test
 9  --
10           MS. GLINK:  That's exactly what I'm trying to show,
11  your Honor.
12           THE COURT:  -- and if it was a police department with
13  similar circumstances or something, so there is a sufficient
14  similarity.
15           It certainly is not conclusive on anything, but it
16  seems to me it might be relevant as to the validity of the
17  principles that he would say he was relying on in this case.
18           MS. GLINK:  That's exactly what I'm trying to elicit,
19  your Honor.
20           THE COURT:  All right.
21           In other words, I will sustain the objection in part
22  and deny it in part, depending upon what we are dealing with
23  here.
24  BY MS. GLINK:
25  Q.  Let me repeat my question.
                                       Barrett - direct
                                                              381
 1           Were any of the examinations that you've developed for
 2  police promotional examinations challenged under Title VII?
 3  A.  Yes.
 4  Q.  And were they challenged on the grounds that the tests that
 5  you developed were not valid?
 6           MR. FLAXMAN:  Let me object to the leading form of the
 7  question, and I do not think that complies with your Honor's
 8  ruling.
 9           THE COURT:  No, I think it does, because that is what
10  -- it seems to me that is required to see whether there is
11  going to be any relevance or not.
12           Again, I am not going to take into account anything
13  that is not relevant in this case, but I will overrule the
14  objection and permit him to answer that now.
15           Do you need the question over, again?
16           THE WITNESS:  No, I think I understand the question.
17  BY THE WITNESS:
18  A.  To be more precise, there was a charge of disparate impact,
19  and the issue then became is the test -- safety force tests
20  content valid or not.  And, yes, I have been involved in that;
21  and, yes, we've always prevailed in those situations.
22  BY MS. GLINK:
23  Q.  And were those tests that you developed utilizing a
24  content-valid approach?
25  A.  Some of them were, some were not.  Some were
                                       Barrett - direct
                                                              382
 1  criterion-related, also.
 2  Q.  The ones that you developed that utilized a content-valid
 3  approach, did they contain -- did any of those examinations
 4  contain a written job knowledge test similar to the written job
 5  knowledge test that you developed for the examination that you
 6  gave for the Chicago police sergeant's examination?
 7  A.  To the best of my knowledge, they all did.
 8  Q.  Did any of these examinations contain an in-basket
 9  simulation that was similar to the type of in-basket simulation
10  that you developed and designed for this examination?
11  A.  As I recall, some were.  More recent ones.
12  Q.  And did any of those examinations contain an oral exercise
13  that was similar in any way to the oral exercise that you
14  developed for this examination here?
15  A.  Yes, the more recent ones.
16  Q.  And was your -- were those written job knowledge tests that
17  were challenged found to be content valid?
18  A.  Yes, they were found to be valid, yes.
19  Q.  And were the in-basket simulation components of these
20  examinations that were challenged found to be content valid?
21           MR. FLAXMAN:  I think I'm going to object to the
22  leading.
23           THE COURT:  Well, I do not think she is really
24  suggesting the answer.  I think she is directing him to a
25  particular area.
                                       Barrett - direct
                                                              383
 1           But the fact that somebody else found something valid,
 2  I just want to make it clear, to my mind is not binding.  It
 3  would -- on this Court.  And I think we get off on a slippery
 4  slope if we start trying to compare other cases and other
 5  challenges with the one that we have here.
 6           MS. GLINK:  Your Honor, I -- based on this examination
 7  --
 8           THE COURT:  I think as far as we have gone, it is
 9  relevant.  But I am not sure that going any further is really
10  going to be of great validity because it -- unless we are
11  dealing with a 7th Circuit case that has already ruled on the
12  exam -- essentially, the same questions for a police department
13  within 7th Circuit -- it just seems to me that it really is not
14   -- does not have any greater relevance than what has already
15  been brought out.
16           MS. GLINK:  I don't intend to ask any more questions,
17  your Honor, on this area.
18  BY MS. GLINK:
19  Q.  The only question I do have left in this area is to ask,
20  Dr. Barrett, whether you have ever developed a performance
21  evaluation system that has been challenged?
22  A.  Yes.
23  Q.  And can you explain -- can you describe for us what this
24  performance evaluation system consisted of?
25  A.  Yes.  We developed for the Akron Police Department a
                                       Barrett - direct
                                                              384
 1  performance appraisal system which was designed to be used to
 2  help in the promotion from patrol officer to police sergeant.
 3  We did extensive work on this performance appraisal device.
 4  And we pilot tested it, and we found it to be reliable and
 5  valid when it was used on the pilot-test basis.
 6           When we tried to use it operationally and use it for
 7  actual promotions, the process fell apart.  We had reluctance
 8  by the supervisors to downgrade anyone and to discriminate in
 9  terms of make that different and judge performance among the
10  people for whom they supervised.  So, in fact, the process did
11  not work operationally.  In fact, it was not used.
12  Q.  And is your experience in Akron, does that in any way
13  impact your opinion with regard to the difficulty in developing
14  performance appraisal systems for promotional purposes?
15  A.  Yes.
16  Q.  Dr. Barrett, let's turn to your examination.  We've covered
17  a lot of material in this area, and I don't intend to go
18  in-depth into it, again, but I'd like to just set forth the
19  process from the beginning to the end.
20           Can you tell me what the first phase of your test
21  development process was?
22  A.  The first phase was the job analysis process, where we
23  conducted over 120 interviews with both incumbent sergeants and
24  supervisors.
25           We had our job analysts do ride-alongs.
                                       Barrett - direct
                                                              385
 1           We examined actual paperwork which was generated and a
 2  product of what sergeants did, and we observed the sergeants in
 3  performing their job duties.
 4           And we did what was called a comprehensive job
 5  analysis, from which we then developed a master job
 6  description.  And, of course, the job analysis process, we're
 7  careful to get people diverse in terms of both race and sex.
 8           From -- once we developed the master job description,
 9  then we determined the knowledge, skills and abilities which
10  were associated with each of the major work behaviors.
11  Q.  Let me stop you there, Dr. Barrett.
12           I'm going to -- since it's no longer up there, I'm
13  going to give you a copy of what's been marked as Defendant's
14  Exhibit D.  This is -- can you identify it for the Court one
15  more time, what that is?
16           (Document tendered.)
17  BY THE WITNESS:
18  A.  This is the report on the development and administration of
19  the promotion process for the job of Chicago police sergeant
20  dated December 13th, 1994.
21  BY MS. GLINK:
22  Q.  And is this job analysis and the process which you followed
23  set forth anywhere in this technical report?
24  A.  Yes, it is.
25  Q.  You mentioned that you conducted over 120 interviews.  I
                                       Barrett - direct
                                                              386
 1  would like to go back to that for a moment.
 2           How did you determine which sergeant you would
 3  interview as part of your job analysis?
 4  A.  Well, we asked for a diversity in terms of assignment and
 5  in terms of race and gender.
 6  Q.  When you say "diversity in terms of assignment," what do
 7  you mean by that?
 8  A.  Well, patrol, desk and other assignments.
 9  Q.  Were there sergeants for more than one district that you
10  interviewed?
11  A.  Yes.
12  Q.  And do you know how many districts there are in the Chicago
13  Police Department?
14  A.  I've forgotten how many there are.
15  Q.  Did you request that you -- or did you seek to interview
16  sergeants from as many districts as you could?
17  A.  Yes, we did.
18  Q.  And why did you do that?
19  A.  Again, we wanted to get a -- we know that the police
20  sergeant plays a variety of roles in different situations in
21  different districts.  So, we wanted to have a broad sample, a
22  representative sample of what was occurring.
23  Q.  And do you know when you began your job analysis for the
24  job of police sergeant?
25  A.  On May 11th of 1993.
                                       Barrett - direct
                                                              387
 1  Q.  And do you know approximately when you completed that job
 2  analysis?
 3  A.  September 14th, 1993.
 4  Q.  And is that information set forth anywhere in your
 5  technical report?
 6  A.  Yes, it is.
 7  Q.  And can you tell us where that's set forth?
 8  A.  I believe in the Appendix C, I believe.
 9  Q.  And Appendix --
10  A.  B, I'm sorry -- no, I'm sorry, C.
11  Q.  Which appendix?
12  A.  I'm trying to see what the number is.  It's Appendix C,
13  yes.
14  Q.  Okay.
15           And that's the master job description that we
16  discussed earlier?
17  A.  Yes.
18  Q.  What type -- you did your job analysis.  It would seem it's
19  stretched out over a few months.  Can you describe for me the
20  process in which you undergo in conducting your job analysis?
21  A.  It's an iterative process.  We use a semi-structured
22  interview.
23           We develop draft job descriptions.
24           We try and identify areas where we're missing
25  information.
                                       Barrett - direct
                                                              388
 1           The job analyst will meet to discuss the process, and
 2  we'll say, "Well, we don't understand how this report, for
 3  example, is filled out.  This incident report is new to us.
 4  What actually goes into this report?"  And, so, we might
 5  concentrate with some sergeants on various aspects of the job.
 6           So, our goal is to understand the process of how, for
 7  example, a sergeant will use certain information.  What
 8  knowledge does a sergeant have to have to fill out the form.
 9  It's that sort of iterative process, until we come up with a
10  master job description and we understand what is occurring in
11  this job.
12  Q.  Now, you mentioned job analysts.  What do you mean by "job
13  analyst"?
14  A.  This is part of the team who works with me in this
15  project.  They are people who are trained to go out and
16  interview people and gain the appropriate information, which
17  allows to document the process and document the job
18  description, document the knowledge, skills and abilities; and,
19  most important, help us construct and develop the tests which
20  are used.
21  Q.  Now, you said you developed draft master job descriptions.
22  What was the purpose of that?
23  A.  We would often take these with us to have other sergeants
24  review them, lieutenants -- to see if there's anything missing,
25  anything which is incorrect, anything we should add to the job
                                       Barrett - direct
                                                              389
 1  description.
 2  Q.  And did you conduct any of these interviews yourself?
 3  A.  Yes.
 4  Q.  And do you have confidence in the abilities of the
 5  individual -- of the other individual job analysts who were
 6  conducting these interviews?
 7  A.  Yes.
 8  Q.  And were these job analysts trained?
 9  A.  Yes.
10  Q.  Did you attempt to interview all different types of
11  sergeants -- and when I say that, I mean, like beat sergeants
12  and desk sergeants -- when conducting your job analysis?
13  A.  Yes.
14  Q.  And what was the purpose of that?
15  A.  Again, to get a representative sample of what sergeants do
16  in the Chicago Police Department.
17  Q.  You also mentioned that you interviewed a racially diverse
18  sample; is that correct?
19  A.  Yes.
20  Q.  And why did you do that?
21  A.  Again, to get potentially different viewpoints about the
22  job of a sergeant.
23  Q.  You mentioned that, in addition to these interviews that
24  you conducted, that you also conducted ride-alongs.  Can you
25  tell me what a ride-along is?
                                       Barrett - direct
                                                              390
 1  A.  Basically, you are with the sergeant during his tour of
 2  duty.  You, basically, if he goes out in the patrol car, you go
 3  out with him or her.
 4  Q.  And you also indicated that you conducted observations.
 5  Can you explain what you mean by that?
 6  A.  Well, you might observe, for example, a desk sergeant
 7  performing his duties, or a field sergeant performing his or
 8  her duties.
 9  Q.  Why is it vital to go on ride-alongs or to conduct these
10  observations -- or excuse me.  Let me rephrase that.
11           Is it vital -- is there a reason why or what is the
12  purpose for participating in ride-alongs and observations?
13  A.  Just to be more complete.  I wouldn't say any of these
14  things are vital.  We probably do more than is typically done
15  in terms of job analysis process.  I wouldn't represent all of
16  our steps are vital.
17  Q.  You also mentioned --
18           THE COURT:  That was not the question she asked,
19  though.
20           You asked for the purpose of the ride-alongs.
21           MS. GLINK:  Right, the purpose.  I'm sorry, I withdrew
22  the question on vital.
23           THE COURT:  Oh, okay.
24  BY MS. GLINK:
25  Q.  The question was:  What's the purpose of the ride-alongs
                                       Barrett - direct
                                                              391
 1  and observation?
 2  A.  Again, to get a fuller understanding of the job and verify
 3  the information we received.
 4  Q.  You mentioned that you reviewed departmental and
 5  organizational materials.  Can you describe for me what these
 6  materials were?
 7  A.  It's any piece of paper which are passed through the
 8  sergeant's hands.  So, it would be anything which the sergeant
 9  might come in contact with.  I mean, we obtain samples of all
10  of these -- those which are blank, those which are filled out
11  -- and we try to understand what each piece of paper means.
12  Q.  And how did you obtain these documents?
13  A.  From the police department.  We asked for these.
14  Q.  As part of your review of these materials, did you also
15  review the general and special orders of the department?
16  A.  Yes.
17  Q.  Were there any other types of documentation that you
18  reviewed during your job analysis process?
19  A.  Well, we also reviewed the Illinois Criminal Code and the
20  city criminal -- portions of the code important for that.  That
21  sort of material.
22  Q.  During this job analysis process, did you have an
23  opportunity to measure the importance for frequency of a
24  particular job task?
25  A.  Yes, we would ask the importance of various tasks and the
                                       Barrett - direct
                                                              392
 1  frequency.
 2  Q.  And how do you develop this sort of information?
 3  A.  Well, you ask the individuals what their judgment is about
 4  this process.
 5  Q.  And that would be during the interview process?
 6  A.  Yes.
 7  Q.  At some point in this process, you mentioned that you were
 8  also able to identify the knowledge, skills and abilities
 9  needed to be able to successfully perform the job -- the major
10  job behaviors of a sergeant; is that correct?
11  A.  Yes.
12  Q.  Knowledge, skills and abilities, does that have any special
13  meaning to an industrial psychologist?
14  A.  Yes.
15  Q.  Can you describe for me what that is?
16  A.  Well, the knowledge is what knowledge is pertinent to the
17  job.  In other words, you look at each work behavior and what
18  sort of knowledge is required to perform the job.  So, it's
19  very specific job knowledge and specific skills, specific
20  abilities which a person might have to bring to the job.
21  Q.  And you were able to identify these during your job
22  analysis process?
23  A.  Yes.
24  Q.  Are these knowledge, skills and abilities and major work
25  behaviors set forth anywhere in your technical report?
                                       Barrett - direct
                                                              393
 1  A.  Yes.
 2  Q.  Can you tell me where they are set forth?
 3  A.  I believe it's part of the job description.  Appendix -- I
 4  think it was in Appendix C, I believe.
 5  Q.  And that's the master job description that we've been
 6  discussing today?
 7  A.  Yes.
 8  Q.  Did anybody review the master job description -- the final
 9  master job description after you had completed your job
10  analysis?
11  A.  Yes, we had people review the final job description.
12  Q.  And what was the purpose of this review?
13  A.  It was just to be sure we're accurate in terms of what
14  we're saying.
15  Q.  And what types of questions, if any, would you ask these
16  people who were reviewing the master job description?
17  A.  Well, the general questions would be, "Is this accurate,"
18  basically.  "Is this what the sergeant does?  What are we
19  missing, if anything?"  That would be the general questions.
20           THE COURT:  Have you made -- is it clear in the record
21  as to who was utilized for any reviews.
22  BY MS. GLINK:
23  Q.  Do you recall?
24  A.  No, I don't recall, but I believe we have material in the
25  report of the reviews.
                                       Barrett - direct
                                                              394
 1           THE COURT:  As to who were the reviewers?
 2           THE WITNESS:  I believe so.  I could be wrong about
 3  that, but I believe we do somewhere.
 4  BY MS. GLINK:
 5  Q.  Were these people who reviewed -- where did these people
 6  who reviewed your master job description -- where did they come
 7  from?
 8  A.  Well, again, these are all -- these are incumbents or
 9  supervisors.  They are --
10  Q.  Subject matter experts from the --
11  A.  Yes --
12  Q.  -- Chicago Police Department?
13  A.  -- they were all -- all from the police department.
14  Q.  Did any of the individuals who reviewed the master job
15  description tell you that you were missing an important aspect
16  of the job of sergeant?
17  A.  No.
18  Q.  At some point during this job analysis process, did you
19  identify the important source materials that a sergeant needs
20  to know?
21  A.  Yes.
22  Q.  And when I say source materials, when -- when I ask you
23  about source materials, what in your mind does that mean?
24  A.  That means the source materials where the job knowledge is
25  contained, and that would include things like the Illinois
                                       Barrett - direct
                                                              395
 1  Criminal Code.
 2  Q.  Would it also include the general orders?
 3  A.  Yes, it would.
 4  Q.  What other sorts of source material would be included?
 5  A.  Specific orders, municipal code, as I previously mentioned,
 6  and a booklet on community policing.
 7  Q.  Did you create a list of the source material that you
 8  identified as important for the job of sergeant?
 9  A.  Yes, we did.
10  Q.  And is that source material set forth anywhere in your
11  technical report?
12  A.  Yes.
13  Q.  And let me direct you to Appendix F of your source material
14   -- I mean, of your technical report?
15  A.  Yes.
16  Q.  Is this the list of source material for the -- that you
17  identified?
18  A.  Yes, it is.
19  Q.  And this source material was used to develop what portion
20  of your examination?
21  A.  This was used to develop the job knowledge test.
22  Q.  In developing your job knowledge test, did you specifically
23  link up your test questions to the source material that's
24  listed in Appendix F?
25  A.  Yes.
                                       Barrett - direct
                                                              396
 1  Q.  And what was the purpose of conducting that type of
 2  analysis?
 3  A.  Just to give more concrete evidence that the source
 4  material and the knowledge from the source material and the
 5  items which represents that knowledge is related to the work
 6  behavior of a police sergeant.  All you're trying to do is
 7  present evidence that this is relevant material.
 8  Q.  And were there source materials that you reviewed that you
 9  decided not to include in your source list for the 1993
10  examination?
11  A.  Yes.
12  Q.  And are those source materials that you decided not to
13  include referenced anywhere in your report?
14  A.  In Appendix G.
15  Q.  And can you describe for me briefly the information that's
16  contained in Appendix G?
17  A.  It contains the general orders not to be included in the
18  reading list, which contains a content area and the rationale
19  for excluding the content.
20  Q.  And what were some of the reasons why you chose not to
21  include some of the general and special orders in the police
22  department as part of your source list for the 1993 police
23  sergeant's exam?
24  A.  Well, basically, we work with a committee of, I believe,
25  four individuals who helped us develop the source list.  So, we
                                       Barrett - direct
                                                              397
 1  had interaction with them as concerning what was relevant and
 2  not relevant.
 3           But some reasons, it might be the responsibility of
 4  the lieutenant, instead of responsibility of a sergeant.  It
 5  could be the responsibility of a watch commander.  It could be
 6  it's not relevant or not critical.  It could be a variety of
 7  issues.  It could be a special assignment.  It could be
 8  rescinded.  It's all listed in the Appendix F -- I mean, sorry,
 9  Appendix G.
10  Q.  And you mentioned that you had four individuals reviewing
11  this source list with you.  Do you recall who these individuals
12  were?
13  A.  Not offhand, but it's included in the -- our documentation.
14  Q.  And were these individuals members of the Chicago Police
15  Department?
16  A.  Yes.
17  Q.  Were they -- did they hold ranks that were higher -- at
18  least as high as the rank of sergeant, if not higher?
19  A.  That's correct.
20  Q.  And what was the purpose of having individuals from the
21  police department review the source material with you?
22  A.  Well, again, they have the best information in terms of
23  what is relevant knowledge for a police sergeant to have.
24  Q.  And did you discuss with them which source material was
25  important and which source material was not important?
                                       Barrett - direct
                                                              398
 1  A.  Well, I didn't personally discuss with them.  Dr. Cellar
 2  was in charge of that part of the project.  But, yes, he did.
 3  Q.  And who is Dr. Cellar?
 4  A.  He is an associate who worked on this project with me.
 5  Q.  And is he an industrial psychologist?
 6  A.  Yes.
 7  Q.  Are you familiar with his work?
 8  A.  Yes.
 9  Q.  And do you -- did you review his work in this case?
10  A.  Yes.
11  Q.  And did you agree with the conclusions and the work product
12  that Dr. Cellar conducted for this test?
13  A.  Yes.
14  Q.  You mentioned briefly that there was also on your source
15  list some -- a document involving the CAPS Program.  Since
16  that's a new term for us, can you briefly describe for the
17  Court what the CAPS Program is?
18           MR. FLAXMAN:  Well, objection.  He is not an expert on
19  the Chicago Police Department.  He is the test developer.
20  Somebody from the police department should tell us what the
21  CAPS Program is.
22           MS. GLINK:  I'll withdraw the question and rephrase
23  it, your Honor.
24           THE COURT:  All right.
25  BY MS. GLINK:
                                       Barrett - direct
                                                              399
 1  Q.  Why did you choose to include on your source list a
 2  document discussing the CAPS Program or dealing with the CAPS
 3  Program?
 4  A.  Because the committee thought it was relevant.
 5  Q.  Relevant to the job of sergeant?
 6  A.  Yes.
 7  Q.  In your opinion, Dr. Barrett was the job analysis that you
 8  conducted for the job of police sergeant comprehensive?
 9  A.  Yes.
10  Q.  And, in your opinion, did the job analysis capture most, if
11  not all, of the important aspects of the job of sergeant?
12  A.  Yes.
13  Q.  And, in your opinion, did the job analysis measure the
14  frequency and importance of the major work behaviors identified
15  during the job analysis?
16  A.  Yes.
17  Q.  And, in your opinion, did your job analysis identify those
18  knowledge, skills and abilities needed to successfully perform
19  the major work behaviors of a police sergeant?
20  A.  Yes.
21  Q.  And, in your opinion, did the job analysis that you
22  conducted conform with industry standards and the EEOC
23  guidelines?
24  A.  Yes.
25  Q.  Once you had your master job description and had completed
                                       Barrett - direct
                                                              400
 1  your job analysis process, what was the next step in the test
 2  development process?
 3  A.  Well, we actually began -- made a determination that there
 4  were three main components to the job in terms of job
 5  knowledge, in terms of administrative decision making, in terms
 6  of oral communications.  So, we started to develop the actual
 7  tests themselves, which involves, in terms of the job knowledge
 8  test, a long process of item writing and review to be sure
 9  that, in fact, that the -- each item is relevant to the job of
10  sergeant.
11           And the final part of the process is a review
12  process.  In this case, it was by Chief Cadigan and Deputy
13  Klein at that time, who came in and reviewed each and every
14  item to determine whether or not it was relevant.
15           They gave us feedback in terms of if it was a relevant
16  item or not, if it was important, if it should be used or not,
17  to help us refine the items, as a matter of fact.  So, that was
18  our final part of the process.
19  Q.  You said that it was a long process of developing items.
20  Your ultimate -- your final multiple-choice or written job
21  knowledge test that you gave was a 150 items; is that correct?
22  A.  Yes.
23  Q.  How many items did you initially develop for this
24  examination?
25  A.  Well, it would be in the hundreds.  I don't know the exact
                                       Barrett - direct
                                                              401
 1  number, but we developed many more items.
 2           Most -- as a matter of fact, I would say many more
 3  items are discarded because of not being good enough.  So, we
 4  do it through a process of taking out the bad items and keeping
 5  the best items.
 6  Q.  And why did you choose to include a written job knowledge
 7  examination as part of your test battery?
 8  A.  Well, it was clear from the past research in the field and,
 9  more importantly, from the job analysis, that job knowledge is
10  very important in terms of being able to perform the job of
11  police sergeant.  In fact, conceptually, if you think about it,
12  if a sergeant doesn't understand the Illinois Criminal Code,
13  they can't perform a large part of their job.  Same way is true
14  of the general and special orders, for example.
15  Q.  Are you aware of any research in your field that involved
16  job knowledge tests like the one that you have developed?
17  A.  Yes.
18  Q.  Did any of those studies or research look at the
19  correlation between job knowledge tests, like the one that you
20  created, and performance on the job?
21  A.  Yes.
22  Q.  And can you describe for me briefly what your understanding
23  is of -- in your professional opinion, what the relationship is
24  between written job knowledge tests and performance?
25  A.  There's invariably a positive correlation between test
                                       Barrett - direct
                                                              402
 1  scores and job performance.
 2  Q.  And that's based on your own professional experience?
 3  A.  Yes.
 4  Q.  And is that supported by the research that you have
 5  reviewed in your field?
 6  A.  Yes.
 7  Q.  Did you have an opportunity to review the Blue Ribbon Panel
 8  report at the time you were developing the examination?
 9  A.  Yes.
10  Q.  Did the Blue Ribbon Panel report play a role in any way in
11  your decision to use a job knowledge test?
12  A.  Not specifically, I don't believe, in terms of -- no, we
13  didn't say "Yes" because the Blue Ribbon Panel had written a
14  job knowledge test.
15  Q.  In your opinion, Dr. Barrett, is the job of police sergeant
16  a complex job?
17  A.  Yes.
18  Q.  And is job knowledge more important when you're dealing
19  with a complex job?
20  A.  Yes, it is.
21  Q.  Can you explain what you mean by that?
22  A.  Well, when you have a job which requires more knowledge and
23  you don't have the knowledge to do it, it's much more difficult
24  to be proficient in that job.  And, so, that's what our
25  research basically shows.  A more complex job, which requires
                                       Barrett - direct
                                                              403
 1  more knowledge, you're apt to have even a higher correlation
 2  between the job knowledge test and job performance.
 3  Q.  You mentioned that Chief Cadigan and Deputy Superintendent
 4  Klein reviewed the items that you developed for the written job
 5  knowledge test; is that correct?
 6  A.  Yes.
 7  Q.  And briefly describe for me -- and did they come to Akron
 8  to do that review?
 9  A.  Yes.
10  Q.  Can you briefly describe for me the process -- the review
11  process?
12  A.  We had one of my associates work with each one
13  individually.  We had a big binder which contained a large
14  number of items potential items.  And, so, we had them -- and
15  we sat down and went over each item asking if this item was, in
16  fact, relevant:  "Is this item relevant or not," did they have
17  any problems with the item of any sort.  And we wrote down all
18  their comments about the item.
19           And, then, if it was an item found to be
20  inappropriate, we would not use it.  Often, they had very good
21  suggestions about how to change the item to clarify the item
22  stem, for example, or the alternatives.
23  Q.  And did you accept the recommendations of the subject
24  matter experts?
25  A.  Yes.
                                       Barrett - direct
                                                              404
 1  Q.  And you incorporated any changes that they recommended be
 2  made?
 3  A.  Yes.
 4  Q.  And why was it important to have subject matter experts
 5  from the police department review your items?
 6  A.  Well, it's important, but not essential.  Some
 7  jurisdictions do not allow anyone to review the test ahead of
 8  time; but, in our case, we were fortunate to have two very
 9  knowledgeable people who were very concerned about having a
10  good test.  Because then you are much -- have a greater degree
11  of assurance that every item you do write is relevant to the
12  job of police sergeant.
13  Q.  And were all 150 items that ultimately ended up on the
14  written knowledge test part of the group of items that these
15  reviewers looked at when they came to Akron?
16  A.  Yes.
17  Q.  In your opinion, is the knowledge tested on the written job
18  knowledge test knowledge that a sergeant must know in order to
19  be effective on the job?
20  A.  Yes.
21  Q.  Is the information -- is the knowledge that's tested by
22  your written job knowledge test knowledge that a sergeant must
23  know the first day on the job?
24  A.  Yes.
25  Q.  Dr. Barrett, we've discussed briefly the in-basket
                                       Barrett - direct
                                                              405
 1  simulation that you developed.  Can you briefly describe for me
 2  first why you included an in-basket examination?
 3  A.  Again, our job analysis indicated that administrative
 4  decision making was a major part of the job of police
 5  sergeant.
 6           Also, past research has indicated the in-basket is a
 7  very effective tool to use when selecting supervisors or
 8  managers.
 9           So, we had that sort of evidence.  And, again, we
10  followed the same process, basically, we did for developing a
11  written test -- job knowledge test.  And it was, again,
12  reviewed by both Chief Cadigan and Deputy Klein.
13  Q.  And that was reviewed, again, in Akron?
14  A.  Yes, it was.
15  Q.  And when you say "followed a similar process," you mean,
16  you went through each item with them?
17  A.  Yes.
18  Q.  Did they also review the materials that were included as
19  part of the simulation package?
20  A.  Oh, yes, yes.
21  Q.  And did Deputy Commissioner Klein and Cadigan make comments
22  and recommendations regarding the items and materials included
23  in the in-basket simulation?
24           MR. FLAXMAN:  Judge, if it's relevant for you to hear
25  what Klein and Cadigan did, it should also be relevant for you
                                       Barrett - direct
                                                              406
 1  to hear from police sergeants about why these questions, in
 2  their view, aren't related to what sergeants do.
 3           I would -- I don't think we could ask to strike all
 4  the testimony about Klein and Cadigan as part of the process,
 5  but I think your Honor should reconsider the ruling about what
 6  other subject matter experts testified to.
 7           THE COURT:  What you are offering, in a sense, is a
 8  rebuttal of their review of the questions; is that the idea?
 9           MR. FLAXMAN:  Yes.
10           THE COURT:  Because they were asked to determine the
11  relevance and applicability, and you have witnesses that
12  dispute --
13           MR. FLAXMAN:  Yes.
14           THE COURT:  -- that, with respect to some of them,
15  anyway?
16           MR. FLAXMAN:  That's correct.
17           MS. GLINK:  Your Honor, we're not offering that
18  testimony from Chief Cadigan and Klein with regards to whether
19  or not a question is valid, just whether or not it relates to
20  the job.
21           THE COURT:  The process of preparing it.
22           MS. GLINK:  That's exactly right.
23           THE COURT:  I think that is correct.  I will overrule
24  the objection on the same basis I briefly did; that, as long as
25  it is just generalized testimony as to the process of
                                       Barrett - direct
                                                              407
 1  preparation, I think it is admissible, and we will permit you
 2  to proceed.
 3  BY MS. GLINK:
 4  Q.  And the in-basket simulation, was that specifically
 5  designed for the Chicago police sergeant's examination?
 6  A.  Yes.  We actually used the actual forms and materials from
 7  the Chicago Police Department.
 8  Q.  When you say "simulation," what does that mean?
 9  A.  That means it's similar to the actual job.  In other words,
10  the basic elements which, in terms of the materials,
11  information which a sergeant might review, are part of the
12  process.  It's not an exact replication, but it's very similar
13  to, in our case, to what the sergeant actually does.
14  Q.  Was it designed to mirror the actual job functions of a
15  sergeant?
16  A.  Well, not exactly.  Again, it's a simulation test.  We
17  can't do everything that -- and do it in the same way in terms
18  of a test that might be done by a sergeant in the field, for
19  example.
20  Q.  And what was the in-basket simulation designed to measure?
21  A.  Well, it was designed to measure administrative decision
22  making, and it had various elements, such as analysis, for
23  example, and verification of rules and regulations.
24  Q.  And those are the underlying abilities and skills that you
25  -- were those underlying abilities and skills identified
                                       Barrett - direct
                                                              408
 1  during the job analysis process?
 2  A.  Yes, it is the sort of thing which, in fact, they do do,
 3  yes.
 4  Q.  In your opinion, did the in-basket simulation test for the
 5  skills and abilities that a sergeant must have to be effective
 6  on the job?
 7  A.  Yes.
 8  Q.  And, in your opinion, did the in-basket simulation test for
 9  knowledge, skills and abilities that a sergeant must have on
10  the first day on the job?
11  A.  Yes.
12  Q.  I'm going to turn to the oral briefing exercise.  Can you
13  briefly describe for me the oral briefing exercise?
14  A.  The oral briefing exercise was one where we had individuals
15  come into a room and have their communication tape-recorded;
16  but, first, they reviewed some material which had to analyze
17  very briefly and organize, and then give a brief presentation
18  of no more than -- of ten minutes.  A briefing about, as I
19  recall, a new drug on the street.
20           And, then, it was rated by three trained raters, in
21  terms of things such as analysis, organization and oral
22  communication.
23  Q.  And, again, you went through the same review process that
24  we have already discussed?
25  A.  Same review process, yes.
                                       Barrett - direct
                                                              409
 1  Q.  And was the oral briefing exercise designed to mirror the
 2  actual oral communication that a sergeant might have to do on
 3  the job?
 4  A.  Not the exact; but, again, it was a simulation of the types
 5  of oral communication which would be an exemplar of.  In other
 6  words, that sort of oral communication could be in a different
 7  context, but we have to use one standardized way of measuring
 8  that aspect of the ability.
 9  Q.  Dr. Barrett, did the oral examination that you developed --
10  in your opinion, does that oral examination test for skills and
11  abilities that are important for a sergeant to have to be
12  effective on the job?
13  A.  Yes.
14  Q.  And did it test for the oral communication skills necessary
15  for a sergeant to have on the first day on the job?
16  A.  Yes.
17  Q.  Did the sergeant's examination that you developed test for
18  the ability of an applicant to synthesize and understand
19  information that was given to him?
20  A.  Yes.
21  Q.  And can you give me an example of how your test tested for
22  the ability to synthesize and understand information?
23  A.  Well, for example, on the in-basket, clearly, you had to
24  take a different piece of information, determine what was
25  relevant, look at the problems which were presented to you in
                                       Barrett - direct
                                                              410
 1  terms of a decision that had to be made; and, therefore,
 2  integrate the information and make that decision.
 3  Q.  Did your test test for an applicant's ability to speak
 4  clearly and coherently and communicate effectively with their
 5  peers and the community at large?
 6  A.  Yes.
 7  Q.  And how was that tested?
 8  A.  Again, in the oral briefing exercise, we directly rated the
 9  individual ability to communicate clearly and concisely to
10  others.
11  Q.  And, yesterday, you testified that the sergeant's
12  examination did not directly test for an applicant's listening
13  skills; is that correct?
14  A.  That's correct.
15  Q.  Can you explain to me what you meant by "not directly"?
16  A.  Well, indirectly, we know that the ability to comprehend
17  written material is related to the ability to comprehend
18  material that you hear.  So, the two are related.  In fact,
19  very early research in the early '70s and '60s showed that to
20  be true; that there is not much of a distinction between
21  understanding material auditorially or reading material and
22  making decisions about it.
23  Q.  And why is that?
24  A.  Basically, because we have an information processor called
25  the brain, where it doesn't really matter if it's the auditory
 
                                                              411
 1  channel or visual channel the information comes into.  It still
 2  has to be processed internally, and a decision is made
 3  internally.
 4           MS. GLINK:  Your Honor, I see that it's 4:30.  Do you
 5  want to stop here?
 6           THE COURT:  Well, where are we on the timing of it?
 7  And I have to talk to the court reporter because we promised we
 8  would not go past 4:30.
 9           We had thought we had a preliminary injunction hearing
10  or motion, but that has been withdrawn.  So, we do not have
11  anything else set.
12           Where are we on completing his testimony?
13           MS. GLINK:  I probably have another 15 or 20 minutes,
14  your Honor, at the most.
15           THE COURT:  What saith thou?
16           MR. FLAXMAN:  I have some cross.
17           THE COURT:  Yes, no, I appreciate that.
18           MR. FLAXMAN:  I think if he is going to be here until
19  tomorrow, we should quit.
20           THE COURT:  You think we could finish by 11:00 or
21  11:30, so he can --
22           MS. GLINK:  I would hope so, your Honor.
23           THE COURT:  -- get out?
24           MS. GLINK:  How much cross do you have?
25           MR. FLAXMAN:  I think we can get him out by 11:30,
 
                                                              412
 1  unless we have emergencies tomorrow, which nobody can predict.
 2           THE COURT:  Well, they are just going to have to wait.
 3           All right.  It seems to me we have covered a lot of
 4  ground.  And let us adjourn for the day then and --
 5           Laurie, you were going to remind me of something I
 6  forgot to --
 7           THE LAW CLERK:  The computer disks.
 8           THE COURT:  Oh, okay, I did cover that.
 9           I guess we have covered everything that we needed to
10  cover, and we -- my rule is, as long as you are on direct, you
11  can confer with counsel.  So, there is no prohibition on that.
12  It is only when you are on cross-examination.
13           So, with that, we will plan to start promptly tomorrow
14  morning, and we are -- we will need a current upgrade as to
15  when he has to run out the door --
16           MS. GLINK:  Yes, your Honor.
17           THE COURT:  -- and his means of getting to the
18  airport, whether there is a car going to be available to him or
19  --
20           MR. FLAXMAN:  Motorcycle.
21           THE COURT:  Motorcycle may be faster, or he can go
22  right down below to hop on a subway, but the problem is the
23  amount of material you have to carry and all the rest.  So,
24  that is something you have to consider.
25           MS. GLINK:  We will make sure we take care of it, your
 
                                                              413
 1  Honor.
 2           THE COURT:  All right.
 3           MR. FLAXMAN:  I would ask that, over the recess, your
 4  Honor reflect on my request that you reconsider your ruling
 5  barring --
 6           THE COURT:  As a rebuttal on the -- okay.  But I do
 7  think that they have a valid point, that they did not go into
 8  any individual questions.
 9           MR. FLAXMAN:  Well --
10           THE COURT:  All they did was they went into the
11  process.
12           MR. FLAXMAN:  But he is going to say -- I think he's
13  already said and he will say it, again, on cross, I believe,
14  that he relied on Klein and Cadigan because they were
15  experienced and they know what sergeants do and that's why he
16  decided that these questions should not be asked.  He relied on
17  their expertise.
18           And I think we should be able to put in rebuttal to
19  their expertise from sergeants, and I just -- something to
20  think about over the --
21           THE COURT:  And you would seek to see whether any
22  comments were made about -- similar to the comments that your
23  --
24           MR. FLAXMAN:  Well, I would try to -- I would ask -- I
25  would present --
 
                                                              414
 1           THE COURT:  -- witnesses would make to specific
 2  questions?  You would ask them whether there is any comments
 3  with respect to these questions?
 4           MR. FLAXMAN:  I would ask them, "Is this question
 5  something that a sergeant does that's important for a sergeant
 6  to do," which is, I think, the same kind of questions that
 7  Cadigan and Klein were asked by Dr. Barrett and his people.
 8           And then we would explain why some questions aren't
 9  what a sergeant does or what a detective does or very uncommon.
10           THE COURT:  Well, you certainly can raise the issue by
11  asking them and ask his opinion about it, whether this is
12  something that does or not, and he may say it is not critical
13  that all the sergeants do it or explain the reasons for the
14  question.
15           Because what we get into then is an argument about
16  what is the extent of -- well, the problem I have is I do not
17  have -- it is not my understanding that the validity of a
18  question depends upon whether it is regularly done by all the
19  sergeants.  I take it that is not required.
20           Now, are we getting to the problem about how many
21  hairs makes a beard?  25 hairs make a beard?  26?  And then we
22  get to the statement, "You mean to tell me that one hair makes
23  a beard."  Well, it does not.
24           But we are talking about a continuum here.  If the
25  continuum determines the validity of a particular question,
 
                                                              415
 1  then I have -- I might have to correct myself.
 2           On the other hand, if there isn't the requirement that
 3  you have most of the sergeants doing something in the
 4  particular way of the test, there is other reasons for the
 5  question and in the way it is stated, then it would seem to me
 6  that it is not then necessary to go into individual sergeants
 7  saying, "I never did that," or, "I have never seen anybody do
 8  that," or, "We do not do it that way in Chicago," or something
 9  like that.
10           Am I making clear what I am trying to -- where I draw
11  the line?
12           MR. FLAXMAN:  I am not understanding it.
13           THE COURT:  Well, I do not understand that it is
14  necessary that the question has to exactly mirror what most of
15  the sergeants do in order to be a valid question.
16           MR. FLAXMAN:  Well, but we have had testimony that
17  this is something a sergeant should know the first day on the
18  job that's critical for the job of sergeant, and we want to
19  rebut that.
20           THE COURT:  Right.
21           Well, I am not sure because I do not know what his
22  answer is going to be to your cross -- you certainly can
23  cross-examine him on that.  There is no limitation on that.
24  And it is clear that individuals cannot testify as to whether
25  the question is not any good or not, but they can testify that
 
                                                              416
 1  this question does not relate to what I understand any of the
 2  sergeants would ever do.  I mean, that --
 3           MR. FLAXMAN:  That's what I was --
 4           THE COURT:  That is what you are seeking to use it
 5  for, although then it gets to be less than that because then
 6  they will testify, "Well, we did not -- the question is
 7  ambiguous, it is hard to understand what it is.
 8           So, then we get to the individual analysis of each of
 9  the questions, and is that a part of -- is that relevant to
10  content validity, and perhaps it maybe is relevant to content
11  validity.
12           MS. PAPUSHKEWYCH:  Well, your Honor, I think that the
13  testimony was that Dr. Barrett's group are the ones who
14  identified the major job tasks.  They are the ones who
15  identified the knowledge, skills and abilities, and they are
16  the ones who identified what sources and what content was --
17           THE COURT:  Right, but what he wants to do is
18  challenge the accuracy of what they did.
19           MS. PAPUSHKEWYCH:  But that's based on question by
20  question.  We could bring in another thousand sergeants in here
21  to challenge, you know, Mr. Flaxman.
22           THE COURT:  Maybe we are going to have to.
23           MS. PAPUSHKEWYCH:  The point is, is that that was
24  brought out to determine what the process was in terms of the
25  review.  When --
 
                                                              417
 1           THE COURT:  Well --
 2           MS. PAPUSHKEWYCH:  -- Deputy Klein was on the stand,
 3  he was not asked --
 4           THE COURT:  All right, but are you saying -- I mean,
 5  admittedly, it is relevant to process the way you are
 6  proceeding.  But what the plaintiff is saying, he ought to have
 7  a right to point out that the process produced some erroneous
 8  questions that may or may not have affected the content
 9  validity of the test.
10           MS. PAPUSHKEWYCH:  And Deputy Klein was on the stand
11  and was not asked those questions by Mr. Flaxman.
12           THE COURT:  No, but you certainly would have the right
13  to call him in your case in chief if you wished with respect to
14  what it might be.
15           Let me think about it overnight because I do not think
16  it is really going to make that much difference.  Your
17  witnesses, at least the essential ones, are still going to be
18  available, I take it?
19           MR. FLAXMAN:  Yes.
20           THE COURT:  And while -- and it really will not affect
21  the completion of Dr. Barrett's testimony because you certainly
22  have the right to ask the questions about all that on
23  cross-examination and ask him why isn't this ambiguous.  That's
24  okay.
25           MR. FLAXMAN:  Well, I would prefer to ask that of a
 
                                                              418
 1  police expert, rather than of an industrial psychologist.
 2           THE COURT:  Well, except he is the one that made the
 3  final decisions on the questions, I guess, or -- well --
 4           MS. GLINK:  I would think, your Honor --
 5           THE COURT:  -- pretty close to it, anyway.
 6           MS. GLINK:  -- that before his experts would be able
 7  to testify about all the items on the test, they would have to
 8  establish that they have, indeed, performed each and every
 9  function or studied each and every function of a sergeant.
10           THE COURT:  See, the fact that a few questions might
11  be taken to be ambiguous or that the questions -- or that a few
12  questions relate to activity of the sergeant that is unusual as
13  opposed to a common activity, a few questions would not, it
14  seems to me, be sufficient ground for finding a test to be
15  invalid.
16           On the other hand, if 80 percent of the questions seem
17  to be off base, maybe it has something to do with the content
18  validity.  We have no testimony as to where what percentage of
19  questions have to be substantially relevant as opposed to
20  insubstantially relevant.  I do not know, you know, the use of
21  these terms.  Lack of precision, of course, that is part of the
22  problem of language, particularly dangerous language.
23           But I cannot say at this point that, if enough
24  questions did not seem to relate to what actually occurred,
25  that that would not have an effect on the content validity of
 
                                                              419
 1  the test.
 2           Now, this witness is still going to be able to testify
 3  to that.  There is still available rebuttal and surrebuttal,
 4  which I am not encouraging; but, in my opinion, considering the
 5  background and the time that has been allowed between the
 6  announcement and the appointments and all the rest, that we
 7  should not be put into a position where we do not permit
 8  sufficient evidence to come in in the hurry to reach a
 9  decision.  I mean, that is not appropriate.  That is wrong.
10           So, let me think about it overnight.  Partly, it is a
11  lack of my knowledge having heard, you know, the basis on which
12  this was created.  I do -- I have heard more -- considerably
13  more testimony now.  And, so, let me think about it overnight,
14  and I will let you know first thing in the morning.
15           MR. FLAXMAN:  Okay.  Thank you.
16           THE COURT:  But I really hate the idea that we are
17  working against such a tight deadline, and it just seems to me
18  that I cannot base a decision on time.  I really have to base
19  it on the merits.
20           So, all right.  Thank you very much.  Stand
21  adjourned.
22           (Whereupon, an adjournment was taken at 4:40 o'clock
23      p.m., until 9:00 o'clock a.m., the following day, March 7,
24      1996.)
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                                                              420
 1  I certify that the foregoing is a true and accurate transcript
    of proceedings in the above-entitled matter.
 2
 3  ________________________________ __________________, 1996.
 4  P.M. session reported by:
    Joseph A. Rickhoff, CSR, RPR
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