In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2212
RAUL BANOS, et al.,
Plaintiffs-Appellants,
v.
CITY OF CHICAGO,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 CV 7629—James B. Zagel, Judge.
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ARGUED DECEMBER 6, 2004—DECIDED FEBRUARY 14, 2005
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Before EASTERBROOK, KANNE, and EVANS, Circuit Judges.
EVANS, Circuit Judge. As anyone who was awake during
the fall of 2004 knows, the label of “flip-flopper” got con-
siderable play during the presidential campaign. The term
lives again in this appeal, which involves yet another
challenge to the promotion procedures of the Chicago Police
Department. The plaintiffs are minority police sergeants
who claim their failure to be promoted after taking the 1998
lieutenant examination violated Title VII of the Civil Rights
Act of 1964, 42 U.S.C. §§ 2000e to e-17. During the course
of litigation, the plaintiffs elected to renounce one theory of
recovery in order to pursue another. But later, when this
fresh approach appeared doomed, they tried to resuscitate
their original claim. A federal district court did not allow it
2 No. 04-2212
and entered summary judgment in favor of the City of
Chicago.
First, some background. The promotional process at issue
had three parts: a written qualifying test, an assessment
exercise, and a merit selection process. See Allen v. City of
Chicago, 351 F.3d 306 (7th Cir. 2003). Applicants were
required to pass the written qualifying test to be considered
for promotion under the other two factors. The City then
promoted 70 percent of applicants from a rank-order list of
candidates based on their scores on the assessment exer-
cise, which required written responses to questions relating
to officer supervision, subordinate evaluation, review of
reports, and situational judgment. See id. at 309. The
remaining 30 percent were promoted on merit. The written
qualifying test had a disparate impact on African-Ameri-
cans, while the rank-order assessment exercise had a
disparate impact on African-American and Hispanic
officers. Merit promotions had no disparate impact.
In their original complaint, filed in November of 1998, the
plaintiffs alleged that the City’s employment test
(the written qualifying test and the rank-order assess-
ment exercise) unlawfully discriminated against them on
the basis of race. The district court certified two sub-
classes of officers adversely affected by the 1998 promo-
tion process. Subclass A plaintiffs are minority officers who
failed the written qualifying test and are thus ineligible for
promotions based on assessment or merit. Subclass B
plaintiffs are those who passed the written qualifying test
but did not score high enough on assessment to
earn a promotion.
In July of 2000, the plaintiffs requested leave to file a
“conditional amended complaint” and a stay of discovery
pending resolution of the petition for a writ of certiorari
filed in Bryant v. City of Chicago, 200 F.3d 1092 (7th Cir.
2000). In Bryant, minority sergeants challenged the 1994
No. 04-2212 3
lieutenant promotion process and its use of test results
to make rank-order promotions. We concluded that the
use of test scores for rank-order promotions was content-
valid and thus not violative of Title VII. 200 F.3d at 1100.
In their request for a stay, our plaintiffs conceded that
the written qualifying test and assessment exercise of
the 1998 exam were valid under Bryant. They also stated
that if Bryant survived, they would “limit their case to
whether making more than 30% of the promotions through
merit selection would be an ‘equally valid, less discrim-
inatory alternative’ ” under Title VII. The district court
granted their request and stayed the proceedings. The
Supreme Court denied the petition for a writ of certiorari in
Bryant in October of 2000.
A month later, the plaintiffs filed an amended complaint;
this time alleging that merit promotions are an equally
valid, less discriminatory alternative to the rank-order
promotions and that the City violated Title VII by limit-
ing them to 30 percent of all promotions. When discovery
resumed, the plaintiffs, responding to the City’s request
for admissions under Fed. R. Civ. P. 36(a), conceded the
validity of the written qualifying test and the assess-
ment exercise under Title VII. By the time discovery
closed in August of 2002, the plaintiffs had failed to des-
ignate an expert to substantiate their claims.
The City moved for summary judgment in November
of 2002, based on the plaintiffs’ failure to secure an ex-
pert, as well as the decision of a federal district court
in Allen v. City of Chicago, No. 98 C 7673, 2002 WL
31176003 (N.D. Ill. Sept. 30, 2002). In that case, the court
rejected a similar challenge to the 1998 lieutenant ex-
amination, concluding that the plaintiffs failed to dem-
onstrate that increasing the percentage of merit-based
promotions from 30 percent was an equally valid, less
discriminatory alternative. The plaintiffs in our case
responded by moving to stay summary judgment proceed-
4 No. 04-2212
ings pending disposition of the appeal in Allen. The court
granted their request and stayed the proceedings for a
second time. In December of 2003, we affirmed in Allen,
concluding that the plaintiffs failed to set forth evidence
establishing that increased merit-based promotions are
an equally valid, less discriminatory alternative. See
Allen v. City of Chicago, 351 F.3d 306, 315 (7th Cir. 2003).
The plaintiffs then tried to flip-flop, asking under Fed.
R. Civ. P. 36(b) to withdraw their earlier admissions that
the written qualifying test and assessment exercise are
kosher under Title VII. The plaintiffs acknowledged that
“Allen is fatal to any ‘equally valid, less discriminatory
alternative’ argument in this case” and argued that they
should be allowed to resurrect their claims relating to
test validity because, in their view, Allen altered the
City’s burden of proof for justifying a discriminatory
selection method. The district court denied the request
and then entered summary judgment in favor of the City.
On appeal, the plaintiffs contend that the district court
erred by not allowing them to withdraw their admissions.
Admissions, in some ways, are like sworn testimony. Once
one is made, there is no need to revisit the point. Under
Rule 36(b), matters admitted are “conclusively established.”
In our case, the plaintiffs admitted, among other things,
that the written qualifying test and assessment exercise of
the 1998 exam “do not violate or contribute to any violation
of Title VII.” Now, they wish to take back these admissions.
A sort of flip-flop, if you will.
A court, in its discretion, may permit a party to rescind
admissions when doing so better serves the presenta-
tion of the merits of the case and the party who benefits
from the admissions (usually by relying on them) is not
prejudiced. Fed. R. Civ. P. 36(b). We review a court’s refusal
to allow the withdrawal of admissions only for an abuse of
discretion. United States v. Kasuboski, 834 F.2d 1345, 1350
No. 04-2212 5
n.7 (7th Cir. 1987); Perez v. Miami-Dade County, 297 F.3d
1255, 1265 (11th Cir. 2002).
Here, there was no abuse of discretion. In the first
instance, the plaintiffs cannot, in the words of Rule 36(b),
demonstrate that permitting them to withdraw their
admissions “subserves the merits.” Their original, aban-
doned claims are likely foreclosed by Bryant, whether they
admit it or not. Still, they contend the district court
abused its discretion because there was a change in our
analysis of disparate impact. To prevail on such a cause
of action, the plaintiffs must establish that the City’s
promotion process caused a disparate impact on minor-
ity sergeants. If this is shown, the burden shifts to the
City to demonstrate that the promotion process is “job
related” and “consistent with business necessity.” 42 U.S.C.
§ 2000e-2(k)(1)(A); Allen, 351 F.3d at 311. The City can
show that its process is “job related” by any one of three
tests: criterion-related, content validity, or construct
validity. See Uniform Guidelines on Employee Selection
Procedures, 29 C.F.R. § 1607.5(B); Bryant, 200 F.3d at 1094.
If the City makes this showing, the plaintiffs can still
prevail by showing that an alternative practice exists and
the City refused to adopt it. 42 U.S.C. § 2000e-2(k)(1)(A)(ii)
and (C); Allen, 351 F.3d at 311-12.
The plaintiffs claim that our interpretation of this
test has changed. Specifically, they contend that before
Bryant, an employer could demonstrate the validity of rank-
order selection only by using empirical evidence of
an association between performance on the exams and
on the job. In their view, Bryant abandoned this require-
ment, leaving them no choice but to admit the validity
of the 1998 test. But then later in Allen, so the argu-
ment goes, the requirement of statistical evidence demon-
strating a correlation between test and job performance was
reinstated.
6 No. 04-2212
The plaintiffs are misreading these cases. As we
stated earlier, employers can establish job-relatedness
by one of three methods, including “content validity,” which
entails showing that “the test measures the job
or adequately reflects the skills or knowledge required
by the job.” Gillespie v. Wisconsin, 771 F.2d 1035, 1040
n.3 (7th Cir. 1985) (internal quotation omitted). A typing
test for secretaries exemplifies this kind of approach. Billish
v. City of Chicago, 989 F.2d 890, 895 (7th Cir. 1993) (en
banc). This method does not require empirical evidence, but
instead “should consist of data showing that the content of
the selection procedure is representative of important
aspects of performance on the job.” 29 C.F.R. § 1607.5(B). In
contrast, the “criterion related” approach evaluates whether
a test is adequately correlated with future job performance
and is constructed to measure traits thought to be relevant
to future job performance. An IQ test is a typical criterion-
related method. See Billish, 989 F.2d at 896. Unlike content
validity, this method requires “empirical data demonstrat-
ing that the selection procedure is predictive of or signifi-
cantly correlated with important elements of job perfor-
mance.” 29 C.F.R. § 1607.5(B).
Contrary to the plaintiffs’ assertion, our pre-Bryant cases
authorized proceeding under the content-validity approach
to establish job-relatedness, which as we have said does not
require employers to come forth with statistical evidence.
See Billish, 989 F.2d at 896; Gillespie, 771 F.2d at 1044.
Bryant was no departure from this. There, we concluded
that the City demonstrated that the test scoring system
used in the 1994 lieutenant exam was content-valid and
that the use of these scores to make promotions in rank
order was job-related. 200 F.3d at 1099-1100. Finally, Allen
had no bearing on the employer’s burden of establishing job-
relatedness, as the plaintiffs in that case conceded the
validity of the 1998 exam. 351 F.3d at 312. Instead, Allen
concerned step three of the burden-shifting analysis, i.e.,
No. 04-2212 7
whether the plaintiffs established an equally valid, less
discriminatory alternative to merit promotions. Id. at 315.
Thus, our analysis of disparate impact has not shifted, and
permitting the plaintiffs to withdraw their admissions
would be pointless.
Moreover, merits notwithstanding, the City met its
burden of establishing prejudice. This lawsuit has been
around since 1998. The plaintiffs forced the City to liti-
gate the issue of test validity, only to abandon the theory
with a vow not to litigate it. Discovery was then com-
pleted on the plaintiffs’ new theory that merit promotion
was an equally valid, less discriminatory alternative.
Once it became apparent that the plaintiffs could not
win under this theory, they tried to go back where they
started. Throughout this litigation, the City has been
subjected to long delays and voluminous discovery. Enough
is enough.
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-14-05