Adams, Edward v. City of Chicago ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 05-4145 & 05-4150
EDWARD ADAMS, PEGGY ADAMS,
HELEN ADAMS, et al.,
Plaintiffs-Appellants,
v.
CITY OF CHICAGO,
Defendant-Appellee.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
Nos. 94 C 5727 & 00 C 3192—John A. Nordberg, Judge.
____________
ARGUED JUNE 1, 2006 —DECIDED NOVEMBER 16, 2006
____________
Before FLAUM, Chief Judge, and MANION and WILLIAMS,
Circuit Judges.
MANION, Circuit Judge. Minority Chicago police officers
sued the City of Chicago, claiming that a 1994 examina-
tion for promotion to sergeant, and the ensuing February
1997 promotions based on that examination, had a disparate
impact that discriminated based on race. The district court
granted summary judgment to Chicago, determining that
the police officers could not demonstrate the availability of
an alternative method of promotion that was equally valid
2 Nos. 05-4145 & 05-4150
and less discriminatory than the examination used. We
affirm.
I.
Chicago employs approximately 10,000 sworn law
enforcement officials, including 8,000 police officers and
1,200 sergeants. Sergeants supervise the officers, and
lieutenants, in turn, supervise the sergeants. Chicago’s
methods for promoting officers up these ranks has proven
to be a contentious issue that has spawned litigation over
the past several decades.1
Responding to the continuing controversy over promo-
tions, Chicago’s mayor appointed a panel in 1990 to make
recommendations concerning future promotions. Based
1
See, e.g., Banos v. City of Chicago, 398 F.3d 889, 890 (7th Cir. 2005)
(minority sergeants challenged 1998 promotions to lieutenant);
Allen v. City of Chicago, 351 F.3d 306, 307 (7th Cir. 2003) (minority
officers challenged 1998 promotions to sergeant); Barnhill v. City
of Chicago, 142 F. Supp. 2d 948, 950 (N.D. Ill. 2001) (white male
officers challenged 1998 promotions to sergeant); Bryant v. City of
Chicago, 200 F.3d 1092, 1094 (7th Cir. 2000) (minority sergeants
challenged 1994 promotions to lieutenant); Deveraux v. City of
Chicago, 14 F.3d 328, 331 (7th Cir. 1994) (sergeants and lieutenants
challenged Chicago’s retiring of previous promotional roster);
United States v. City of Chicago, 870 F.2d 1256, 1257-58 (7th Cir.
1989) (white female sergeants challenged 1988 promotions to
lieutenant); Bigby v. City of Chicago, 766 F.2d 1053, 1055 (7th Cir.
1985) (minority and white sergeants challenged 1977 promotional
exam for lieutenant promotions); United States v. City of Chicago,
411 F. Supp. 218, 224 (N.D. Ill. 1976) (minorities and women
challenged the 1971 exam for promotion to sergeant), aff’d in part,
549 F.2d 415 (7th Cir. 1977).
Nos. 05-4145 & 05-4150 3
on those recommendations, Chicago hired an outside
consultant to create a promotional examination. In the
present suit, black and Hispanic officers challenge the
resulting 1994 examination used to promote officers to
sergeants and the promotions made based on the examina-
tion scores. The promotional examination consisted of three
parts, which we described in a previous opinion:
Part I contained multiple-choice questions covering
the law, department procedures, and other regulations
sergeants needed to know. Part II (also multiple-choice)
tested the administrative functions performed by
sergeants, including reviewing reports and determining
crime patterns. Candidates who did well on Parts I and
II were presumed to know the fundamentals and were
then given the opportunity to take the third part of the
test, an oral examination based on a written briefing.
Adams v. City of Chicago, 135 F.3d 1150, 1152 (7th Cir. 1998).
Each of the three parts was weighted equally and the scores
ranked. The ranking generated a promotional list, with the
highest score listed first and entitled to the first promotion.
The parties agree that this examination and ranking had a
disparate impact on minorities. Chicago made promotions
to sergeant based on this ranking in August 1994, March
1996, and, relevant here, on February 22, 1997, before
retiring the promotional list. Earlier in these proceedings,
the officers sought an injunction to prohibit Chicago from
making further sergeant promotions, which the district
court denied and we affirmed. Id.As the litigation continued, the mayor appointed a task
force to make recommendations for the promotional
process. The task force issued its report on January 16, 1997,
which included a recommendation that, in the future, thirty
percent of promotions to sergeant be based upon merit, with
4 Nos. 05-4145 & 05-4150
the promotional tests used to assure “a minimum level of
competence.” Adams, 135 F.3d at 1153. Merit refers to the
officers’ on-the-job performance, as rated by their supervi-
sors. Merit does not necessarily correlate with performance
on the examination. Chicago did not follow this recommen-
dation in making its February 22, 1997 promotions just over
one month later.
Chicago administered its first written examination for
police officers over a century ago in 1894. It did not make
promotions from officer to sergeant based on merit until
after the task force’s recommendations in 1998. Nonetheless,
the officers submit that Chicago could have and should
have instituted a merit component for promoting officers to
sergeants. The officers point out that, beginning in 1989, the
City used merit to fill twenty percent of D-2 positions. D-2
positions retain the rank of police officers, but function as
detectives, youth officers, and gang crimes specialists.
Furthermore, the officers note that pursuant to the task
force’s recommendations, Chicago made thirty percent of its
promotions from officer to sergeant and from sergeant to
lieutenant based on merit beginning in 1998. Since Chicago
considered merit in appointing D-2 positions and lieuten-
ants, and since the panel recommended merit considerations
for prospective sergeant promotions, the officers argue that
Chicago could have used merit in making thirty percent of
the promotions to sergeants in 1997. They claim that this
consideration would have been an equally valid, less
discriminatory method of promotion and that Chicago’s
failure to consider merit therefore violated Title VII.
Faced with these claims in a well-trodden field of litiga-
tion, the district court excluded evidence of Chicago’s
promotional process for promotions made after 1997,
reasoning that the evidence was irrelevant and inadmissible
Nos. 05-4145 & 05-4150 5
as a subsequent remedial measure. Without this evidence,
the district court then determined that the officers could not
demonstrate that considering merit was a method that was
available to Chicago in 1994 or that the consideration of
merit would result in equally valid, less discriminatory
promotions. Accordingly, the district court granted sum-
mary judgment to Chicago. The officers appeal.
II.
We review de novo the district court’s grant of Chicago’s
motion for summary judgment, viewing the facts and
drawing inferences in the light most favorable to the police
officers, who are the non-moving parties. Allen, 351 F.3d
at 311. At the outset, we address the district court’s ex-
clusion of evidence of the 1998 promotions, which provided
that thirty percent of the promotions be based on merit.
Since “decisions regarding the admission and exclusion of
evidence are peculiarly within the competence of the district
court,” we review the district court’s “rulings on motions in
limine for an abuse of discretion.” Heft v. Moore, 351 F.3d
278, 283-84 (7th Cir. 2003) (internal quotation and citation
omitted). As noted, the district court reasoned that the later
promotions to a different rank were irrelevant to determin-
ing the available methods for sergeant promotions in 1994,
and also analogized the changes in promotional methods to
subsequent remedial measures that should be excluded
under Federal Rule of Evidence 407. The officers contest
these rulings on appeal.
Rule 407 provides that “[w]hen, after an injury or harm
allegedly caused by an event, measures are taken that,
if taken previously, would have made the injury or harm
less likely to occur, evidence of the subsequent measures
6 Nos. 05-4145 & 05-4150
is not admissible to prove negligence, culpable conduct,
a defect in a product, a defect in a product’s design, or a
need for a warning or instruction.” We have previously
noted that “[t]he purpose of Rule 407 is to promote safety by
removing the disincentive to take post-accident safety
measures that would exist if the accident victim could
introduce evidence of these measures on the issue of the
defendant’s liability.” Probus v. K-Mart Inc., 794 F.2d 1207,
1210 (7th Cir. 1986) (citing Pub. Serv. Co. v. Bath Iron Works
Corp., 773 F.2d 783, 791 (7th Cir. 1985); Flaminio v. Honda
Motor Co., 733 F.2d 463, 469 (7th Cir. 1984)). The plain
language of this rule does not readily apply to disparate
impact claims, which are not naturally described as “an
injury or harm allegedly caused by an event.” Even if we
were to apply Rule 407, our analysis of this disparate impact
claim requires us to address the availability of an alternative
promotional method, as will be discussed below. A subse-
quently enacted method bears on the availability of the
alternative method at an earlier time. Because we must
discuss the availability of an alternative method, this
situation falls within the ambit of the exception contained in
Rule 407, which explicitly “does not require the exclusion of
evidence of subsequent remedial measures when offered for
another purpose, such as proving . . . feasibility of precau-
tionary measures.” Since another purpose is at issue here,
Rule 407 is an improper basis for the exclusion of the 1998
promotional method.
The district court also excluded this evidence based on
relevancy, concluding that “evidence of [the City’s] promo-
tion practices well after the promotions at issue is irrelevant
to the issue of what information/alternatives were available
when the disputed promotions were made.” In addressing
hiring practices, the Sixth Circuit has explained that “in
proving the existence of a viable alternative hiring proce-
Nos. 05-4145 & 05-4150 7
dure, the court should consider evidence that the plaintiff
might introduce on a variety of factors. Certainly any
subsequent practices adopted by the company would be
relevant.” Chrisner v. Complete Auto Trans., Inc., 645 F.2d
1251, 1263 (6th Cir. 1981). We agree that evidence of subse-
quent procedures may be relevant to proving the availabil-
ity of a procedure at an earlier time. Consequently, the
district court abused its discretion in excluding this evi-
dence. Even considering this evidence, however, the officers
fail to show that Chicago had an opportunity to adopt an
alternative available method for evaluating the merit of
officers seeking promotion to sergeants before the promo-
tions were made in 1997.
As we have previously held, in order “[t]o succeed on a
disparate impact claim, plaintiffs bear the burden of show-
ing that a particular employment practice causes a disparate
impact on the basis of race.” Allen, 351 F.3d at 311. Chicago
concedes that the 1994 promotional examination, the
employment practice at issue, had a disparate impact on
minority officers. Having established the disparate impact,
“the burden shifts to the City to demonstrate that the
promotion process is ‘job related’ and ‘consistent with
business necessity.’ ” Banos, 398 F.3d at 892 (citing 42 U.S.C.
§ 2000e-2(k)(1)(A); Allen, 351 F.3d at 311). The officers
concede that the examination was job related and consistent
with business necessity in the wake of Bryant, 200 F.3d at
1094, which validated a similarly constructed examination
for promotions from sergeant to lieutenant. Thus, “the
burden shifts back to the plaintiff to prove that there was
another available method of evaluation which was equally
valid and less discriminatory that the employer refused to
use.” Bryant, 200 F.3d at 1094 (citing 42 U.S.C. § 2000e-
2(k)(1)(A)(ii); Albemarle Paper Co. v. Moody, 422 U.S. 405, 425
(1975)).
8 Nos. 05-4145 & 05-4150
We therefore consider whether the officers meet this
burden. The officers propose as an alternative that Chicago
could have made thirty percent of the 1997 promotions
based on merit. To succeed with this claim, this alterna-
tive “must be available, equally valid and less discrimina-
tory.” Allen, 351 F.3d at 312 (citing Bryant, 200 F.3d at 1094).
Thus, to prevail, the officers must show that making
the thirty percent of the promotions to sergeant based on
merit “would be of substantially equal validity” as promo-
tions based solely on the 1994 sergeant examination, and
that including such merit promotions “would be less
discriminatory than” use of the examination alone. Id. In
other words, “the officers effectively bear the burden of
establishing that the last officer promoted [in the proposed]
merit-based selection process would be roughly as qualified
as the officer with the [ ] lowest score on the” 1994 examina-
tion who was slated to be promoted. Id. (citing Albemarle,
422 U.S. at 425; Bryant, 200 F.3d at 1094). Most critical to this
case, “the statutory scheme requires plaintiffs to demon-
strate a viable alternative and give the employer an oppor-
tunity to adopt it.” Id. at 313 (citing 42 U.S.C. § 2000e-
2(k)(1)(A)). Disparate impact, then, requires the officers to
demonstrate that Chicago “refuse[d] to adopt such alterna-
tive employment practice.” 42 U.S.C. § 2000e-2(k)(1)(A)(ii).
In subsequent litigation related to the 1998 promotional
examination, Chicago agreed “that merit-based promo-
tions at the thirty percent level are of substantial equal
validity as assessment-based promotions.” Allen, 351 F.3d at
313 (citations omitted). Even if we were to apply this
concession in this case, the officers have not shown that a
process for evaluating officers on their merit for promotions
to sergeant was available in 1997 or that Chicago refused to
Nos. 05-4145 & 05-4150 9
adopt this alternative earlier.2 Without an available method
for Chicago to adopt, the officers’ claims fail. We will
explain.
No procedure for evaluating the merit of potential
sergeants existed at the time of the contested 1997 promo-
tions.3 In fact, when the consultant created the 1994 exami-
nation, on which the 1997 promotions were based, Chicago
had never considered merit for promotions to sergeant in
the 100 years after written exams were instituted for the
police officers. The parties also agreed that as of February
22, 1997, the date of the contested promotions, “the City had
never developed, and had never had developed for it, a
mechanism or procedure for merit promotions to the rank
of police sergeant that had ever been validated.” The lack of
a validated procedure is significant, since, as the expert who
created the examination testified, it is difficult to obtain
2
We agree with Judge Williams’ statement that “[a] reasonable
alternative is not unavailable simply because the defendant
has not completed its own inquiry into the viability of the
alternative.” (Williams, J., dissenting post at 16.) As the remainder
of this opinion explains, however, after a thorough search, we
find the record to be devoid of evidence that the City could have
feasibly developed and applied a valid merit selection method for
promotions to sergeant during the month between the recom-
mendation of merit selection and the promotions at issue. This
remains plaintiffs’ burden to demonstrate.
3
The vice chairman of the mayor’s 1990 panel testified that,
before the creation of the 1994 examination at issue, the
minority police officer organizations expressed “a great dis-
trust of any subjective components of test processes, including
any reliance on performance evaluations.” In accordance
with this submission, the panel recommended the creation of
an examination by outside consultants over a defined set of
materials, without merit consideration.
10 Nos. 05-4145 & 05-4150
objective, reliable merit ratings from supervisors in a
litigious climate where “they may be accused of favoritism,
bias, perhaps even discrimination” based on the ratings.
The subsequent January 16, 1997, task force report did
recommend the use of merit in future promotions to
sergeant, perhaps in part due to the undisputed disparate
impact of the 1994 examination. This recommendation,
however, was prospective, noting that “the criteria for merit
promotions should be developed by the Superintendent and
broadly distributed.” After receiving the recommendation,
Chicago hired another expert to develop a new promotional
examination and an appropriate merit selection procedure.
The expert spent months performing a job analysis of the
sergeant position and developed criteria for merit selection
based on an analysis of the skills necessary to the position.
The resulting merit selection process involved the training
of select nominators, who were then held accountable for
the accuracy of their nominations, and the further review of
the nominees by the Academic Selection Board and the
Superintendent of the Chicago Police Department. Allen, 351
F.3d at 309-10. This process, from recommendation through
implementation, spanned about nineteen months. Merit was
then used in making the August 1998 sergeant promotions.
To demonstrate that merit should have been used in the
1997 sergeant promotions, the officers bear the burden of
demonstrating that a valid merit selection process was
available on February 22, 1997, only one month after the
task force recommended considering merit and before
the development of appropriate criteria and process, and
that Chicago refused to adopt it. 42 U.S.C. § 2000e-
2(k)(1)(A)(ii).
To meet this burden, the officers submit that merit
evaluations could have been implemented sooner, since
Nos. 05-4145 & 05-4150 11
merit was already used in selecting the D-2 positions. The
task force did suggest in January 1997 using “the exist-
ing merit selection process for detectives as a model” for
sergeant promotions. Nothing in the record, however,
indicates that the D-2 process could be adopted in toto
for sergeants. Both the D-2 and sergeant positions were
filled by police officers. Unlike the D-2 positions, however,
the sergeant positions were supervisory. Thus, the merit
selection process needed to discern and evaluate super-
visory attributes in the non-supervisory rank of officers.
Although the D-2 merit promotion process existed in 1997,
it does not follow that Chicago had an available, equally
valid method for promoting officers to sergeants at that time
based on the D-2 procedure. There was no method
for promoting sergeants that Chicago “refuse[d] to adopt”
and apply in 1997. 42 U.S.C. § 2000e-2(k)(1)(A)(ii).
The officers next point to certain promotions from ser-
geant to lieutenant, which incorporated merit in 1995.
Again, the merit promotion process for lieutenants does not
demonstrate that a process would be available for sergeants
or that Chicago refused to adopt an available alternative
method. First of all, unlike evaluating non-supervisory
officers for a promotion to a supervisory position, both the
sergeant and lieutenant positions are supervisory. Thus,
evaluations of sergeants’ performance already encompassed
the supervisory aspects. The officers have not shown the
availability of a merit evaluation process of officers that
would evaluate attributes for the sergeant position. Further-
more, the pool of sergeants seeking promotion to lieutenant
is significantly smaller than the pool of officers seeking
promotion to sergeant. For example, in 1994, 765 sergeants
sought promotion to lieutenant, while 4,700 officers sought
promotion to sergeant. The officers have not shown that a
valid evaluation method was available on this large scale.
12 Nos. 05-4145 & 05-4150
See Allen, 351 F.3d at 313-14 (addressing limitations in merit
evaluation when number of candidates for promotion
increase). Furthermore, the 1995 promotions to lieutenant
were, unsurprisingly, challenged in federal court. Brown v.
City of Chicago, 19 F. Supp. 2d 890 (N.D. Ill. 1998). In that
case, the district court noted that the “criteria and proce-
dures put in place” for making the 1995 merit promotions
(which were based on past job performance) “were abbrevi-
ated and, as the parties agree, inferior” to the merit evalua-
tions subsequently used in 1998. Id. at 892. The plaintiffs
here do not present evidence that evaluation of officers’ past
performance or an alternative evaluation method
was available or sufficient for ascertaining the merit of
potential sergeants, let alone demonstrate that such an
inferior method would be equally valid to the rankings from
the 1994 examination alone.4 Thus, the officers have not
demonstrated that Chicago refused to adopt an available
4
Judge Williams emphasizes in her dissent the eight-day peri-
od during which the City implemented merit promotions from
sergeant to lieutenant (between February 28, 1995 and March 8,
1995). (Williams, J., dissenting, post at 16.) We note that the
lieutenant merit promotions were almost immediately enjoined
by the Illinois courts for violating state law. See McArdle v.
Rodriguez, 659 N.E.2d 1356, 1359 (Ill. App. 1995). The injunction
was invalidated by federal litigation, but notably not until July 6,
1998, more than 16 months after the promotions to sergeant
at issue in this case. See Brown v. City of Chicago, 8 F. Supp. 2d
1095, 1111-12 (N.D. Ill. 1998). Of course, a state court injunction
is no excuse for violating federal law, but it does indicate that the
City did not “refuse[ ] to adopt” an available alternative. 42
U.S.C. §2000e-2(k)(1)(A)(ii). Regardless, the size and scale of the
applicant pool and the officers’ lack of supervisory experience
distinguish the available methods used for promotions to
sergeant from the promotions to lieutenant.
Nos. 05-4145 & 05-4150 13
method for considering merit in making sergeant promo-
tions in 1997. 42 U.S.C. § 2000e-2(k)(1)(A)(ii).
In sum, while the officers assert that thirty percent of the
promotions to sergeant should be made based on merit, a
proposition subsequently adopted by Chicago, the officers
have not demonstrated that this method was available in
February 1997 or that Chicago refused to adopt an alter-
native method. As we explained above, “the statutory
scheme requires plaintiffs to demonstrate a viable alter-
native and give the employer an opportunity to adopt it.”
Allen, 351 F.3d at 313 (citing 42 U.S.C. § 2000e-2(k)(1)(A)).
Simply stated, the plaintiffs have failed to demonstrate
that Chicago had an opportunity to adopt and implement
the thirty percent merit-based promotional method in a
valid, viable manner on or before February 22, 1997. The
task force on the issue made its recommendations for merit
promotions just about one month before, on January 16,
1997. At the time of the contested sergeant promotions,
no process existed for evaluating the merits of officers
for promotion to sergeant. Although, in theory, Chicago
could have chosen to base thirty percent of the promotions
to sergeant on merit, there is no evidence that by 1997
Chicago had developed criteria or a method for examin-
ing the merit of officers for promotion to sergeant. Thus, the
officers failed to demonstrate the availability of an allegedly
viable alternative that Chicago refused to adopt. Further-
more, the officers have not shown that a hastily adopted
merit evaluation process would have been of substantially
equal validity to the rankings resulting from the 1994
examination.
III.
14 Nos. 05-4145 & 05-4150
The officers have not demonstrated that Chicago had an
alternative method available to evaluate the merit of
potential sergeants, or refused to adopt such a method, by
February 22, 1997, the date of the contested promotions.
Therefore, their disparate impact claim fails. Accordingly,
we AFFIRM the judgment of the district court.
WILLIAMS, Circuit Judge, dissenting. The majority con-
cludes that the plaintiffs failed to demonstrate the exist-
ence of a question of material fact because they did not
produce evidence that a substantially equally valid alter-
native was available to the City in 1997, at the time of the
contested promotions. But as the majority opinion discusses,
the district court abused its discretion in excluding evidence
of the City’s subsequent success with merit promotions at
the sergeant level. See Chrisner v. Complete Auto Transit, Inc.,
645 F.2d 1251, 1263 (6th Cir. 1981) (“Certainly any subse-
quent practices adopted by the company would be relevant”
to determination of whether plaintiff could show existence
of “an alternative selection device with a disparate impact
less than that of the challenged practice.”). With this
evidence considered, the question of validity is answered.
The only question is whether 30% merit promotions were
“available” in February of 1997.
The majority opinion seems to conclude that the plain-
tiffs have not met their burden of demonstrating availability
because the plaintiffs never presented the City with a
proposal validated under the methods that were ultimately
employed by the city. Nothing in the statute, the applicable
Nos. 05-4145 & 05-4150 15
regulations, or in our caselaw, however, indicates that,
under 42 U.S.C. § 2000e-2(k)(1)(A)(ii), for an alternative to
be available it must have been validated in this manner. At
bottom, the relevant question is simply whether there is
evidence in the record from which a reasonable jury could
conclude that at the time of the contested promotions, the
City could have used the 30% merit promotions proposal.
The answer to this question is “yes.” Regardless of whether
the process of formulating a promotional process for
sergeants was more complex than that for either D-2 or
lieutenant promotions, the fact that the City had success-
fully implemented essentially the same system for these
ranks is powerful evidence that the alternative was available
for sergeant promotions and the City refused to adopt it.
At the very least, a question of material fact remains as to
whether the pace and nature of the City’s investigation
into the possibility of using 30% merit promotions for
sergeants was reasonable. This is underscored by the
timeline of this case—as the majority opinion describes, the
City’s Task Force recommended the use of the 30% merit
promotions proposal more than one month before the
promotions in question. In contrast, it took the City only
eight days to move from the Task Force’s recommenda-
tion to implementation when the City examined its sys-
tem for promoting lieutenants. There is a logical disconnect
between the idea that the City’s own task force had recom-
mended use of this system and the majority’s conclu-
sion that this alternative was unavailable more than one
month later. The explanation for this disconnect is that the
majority has unnecessarily complicated the question of
availability. An alternative is unavailable when, for verifi-
able reasons, the defendant cannot adopt it. A reasonable
alternative is not unavailable simply because the defendant
has not completed its own inquiry into the viability of the
16 Nos. 05-4145 & 05-4150
alternative.
A true situation of no viable alternative being available
can be found in the Eleventh Circuit’s decision in Fitzpatrick
v. City of Atlanta, 2 F.3d 1112 (11th Cir. 1993). In Fitzpatrick,
black firefighters challenged an Atlanta Fire Department
rule that required them to be clean shaven because of the
racially discriminatory impact of this rule. See id. at 1114(“The twelve plaintiff-appellant firefighters in this case are
all African-American men who suffer
from pseudofolliculitis barbae (’PFB’), a bacterial disorder
which causes men’s faces to become infected if they shave
them. It is generally recognized that PFB disproportionately
afflicts African-American men.”). The firefighters proposed
that “shadow beards” would constitute a less-discrimina-
tory alternative with equal safety value, but the Eleventh
Circuit concluded that the firefighter plaintiffs had failed to
introduce sufficient evidence to raise an issue of material
fact where the City had submitted voluminous evidence of
the safety-necessity of its no-beard policy. See id. at 1122-23.
This case is not like Fitzpatrick, where a less-discriminatory
alternative literally did not exist for scientifically verifiable
reasons. Similarly, the Second Circuit has observed that in
housing disparate impact cases, the question of whether a
proposed alternative is available should be determined by
objective factors such as cost. See Hack v. President and
Fellows of Yale College, 237 F.3d 81, 101 (2d Cir. 2000)
(“Factors such as the cost or other burdens of the proposed
policy are relevant to a determination as to whether the
defendant’s refusal to adopt an alternative housing proce-
dure was reasonable.”), abrogated on other grounds by
Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002).
An alternative was available here. There is a question
of material fact as to whether the City took proper steps
Nos. 05-4145 & 05-4150 17
in assessing its viability and in promptly implementing
it. While the City’s timing may have been perfectly rea-
sonable in this case, this was a question for trial. By defer-
ring to the defendant’s calculation of the time needed to
implement an equally valid alternative, our decision invites
abuse by defendants acting in bad faith. I therefore respect-
fully dissent from the majority’s affirmance of the grant of
summary judgment.
18 Nos. 05-4145 & 05-4150
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-16-06