White v. Cook County Public Defender's Office et al

Filing 165

MEMORANDUM OF DECISION Signed by the Honorable John Robert Blakey on 8/14/2017. Mailed notice(gel, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
PATRICK J. WHITE,
Plaintiff,

Case No. 14-cv-7215

v.
OFFICE OF THE COOK COUNTY
PUBLIC DEFENDER, et al.

Judge John Robert Blakey

Defendants.
MEMORANDUM OF DECISION
Plaintiff alleged gender discrimination by the Office of the Cook County
Public Defender in violation of Title VII of the Civil Rights Act of 1964, stemming
from his pass over for promotion to Grade IV Assistant Public Defender in 2013.
See Second Am. Compl. [35]. Plaintiff framed his Title VII discrimination claim
under theories of both disparate treatment and disparate impact. See Tr. [157]
597:3-11. On July 18, 2017, the Court rendered a verdict in favor of the Office of the
Cook County Public Defender on Plaintiff’s disparate impact claim. See Minute
Entry [149]; Tr. [163] 1166:2-5. As promised at trial, this Memorandum Opinion
supplements the Court’s decision as to the bench trial claim only. See Fed. R. Civ.
P. 52(a)(1) (“In an action tried on the facts without a jury or with an advisory jury,
the court must find the facts specially and state its conclusion of law separately.
The findings and conclusions may be stated on the record after the close of the

evidence or may appear in an opinion or a memorandum of decision filed by the
court.”).
Having considered the evidence presented, the parties’ written submissions,
and oral arguments, the Court makes the following findings of fact and conclusions
of law:
I.

Findings of Fact
1.

Plaintiff Patrick J. White began working at the Office of the Cook

County Public Defender in December 2002. Tr. [153] 190:15-17, 20-22; Tr. [154]
300:18-21.
2.

Plaintiff is male.

3.

In September of 2013, approximately 650 employees worked in the

Office of the Cook County Public Defender.

Tr. [157] 621:2-4.

Of these 650

employees, approximately 450 were attorneys. Id. at 621:5-6.
4.

The Office of the Cook County Public Defender contains four levels of

non-supervisory attorneys, also known as Assistant Public Defenders.

Id. at

622:15-16. These levels range from Grade I to Grade IV. Id. at 622:15-623:2.
5.

Generally, promotions from Grade I to Grade II occur automatically

upon the completion of an attorney’s first year of service. Id. at 622:19-23. Further
promotions, however, are awarded through formal promotion processes.

Id. at

623:11-16.
6.

In the spring of 2013, Plaintiff was a Grade III Assistant Public

Defender. Tr. [153] 191:9-10.

2

7.

On May 14, 2013, the Office of the Cook County Public Defender

announced a promotion opportunity for the position of Grade IV Assistant Public
Defender. Defs.’ Ex. 1.
8.

At the time of the promotion announcement, fifteen Grade IV Assistant

Public Defender positions were available for immediate promotion. Tr. [153] 271:913; Tr. [157] 626:15-17; Tr. [158] 786:10-17; Tr. [160] 898:18-20; Tr. [161] 976:9-13.
9.

The minimum qualifications for the position of Grade IV Assistant

Public Defender were as follows:
a. Graduation from an accredited school of law with a Juris Doctor
degree;
b. A current State of Illinois law license in good standing;
c. A minimum of five years’ experience as an Assistant Public Defender;
d. Experience as lead counsel or meaningful participation as secondary
counsel in at least five first degree murder trials to verdict or finding
where the client was tried as an adult;
e. Experience as lead counsel in at least ten additional felony jury trials
to verdict; and
f. Substantial familiarity with and experience in the use of expert
witnesses, mental health, pathology, and DNA evidence.
Defs.’ Ex. 1.
10.

Additional knowledge, skills, and abilities sought for Grade IV

Assistant Public Defenders included the following:
a. The ability to clearly, logically, and effectively express verbal and
written thoughts and opinions and possess a thorough and accurate
knowledge of basic legal principles, concepts, and vernacular;

3

b. The ability to effectively communicate and interact with diverse
cultures and low-income people in consultations, interviews, and
investigations;
c. The ability to probe into sensitive social issues involving family, i.e.,
sexual abuse, child abuse, substance abuse, and domestic violence;
d. The ability to conduct excellent trial advocacy work, interviews, and
investigations;
e. The ability to consult with social workers, probation officers, medical
experts, legal associates, and others to assess the options available to
the defense and advise clients of the same;
f. The ability to conduct legal research; and
g. Knowledge of computer programs relevant to trial practice and
presentation.
Defs.’ Ex. 9.
11.

The application for the position of Grade IV Assistant Public Defender

consisted of: (1) a cover letter; (2) a completed Grade IV Information Form; and (3)
an interview. Defs.’ Exs. 4, 6.
12.

The Grade IV Information Form was a ten-page fillable form that

requested

information

about

the

applicant’s

professional

background

and

experience. Defs.’ Ex. 6. The requested information included the following:
a. Past and present courtroom and judge assignments;
b. Past and present courtroom partners and supervisors;
c. The total number of felony jury trials in which the applicant performed
a significant function;
d. The name, case number, charge, judge, and trial partner of ten felony
jury trials in which the applicant served as first chair;

4

e. The total number of murder trials in which the applicant performed a
significant function as lead or secondary counsel;
f. The name, judge, trial partner, and details of at least five murder
trials (bench or jury) in which the applicant performed a significant
function as lead or secondary counsel;
g. The different types of expert witnesses the applicant had worked with,
including the expert’s name, field of expertise, and whether the
applicant had direct-examined, cross-examined, or merely consulted
with the expert;
h. The name and date of any seminars presented by the applicant;
i. The last five evidentiary motions presented by the applicant, including
the type of motion and outcome;
j. A description of two of the applicant’s “more creative” motions,
including the type of motion, why and how it was presented, and the
outcome;
k. An explanation of why the applicant would visit the scene of an alleged
crime in some cases but not others;
l. The last five on-scene investigations conducted by the applicant,
including the purpose of the investigation and the outcome;
m. An explanation of why the applicant would make more than one jail
visit in some cases but not others;
n. A list of any non-Illinois Pattern Instructions that the applicant had
tendered for trial;
o. A description of the applicant’s use of technology at trial;
p. A description of a difficult client that the applicant had represented;
and
q. A description of a case in which the applicant had conducted extensive
sentencing advocacy.
Id.

5

13.

Plaintiff applied for the position of Grade IV Assistant Public

Defender. Tr. [153] 191:11-13.
14.

The Collective Bargaining Agreement between Assistant Public

Defenders and the County of Cook mandates that “the most qualified applicant” be
selected when filling a vacancy through promotion.

Defs.’ Exs. 4, 10; Tr. [157]

628:7-23.
15.

The Office of the Cook County Public Defender established a Grade IV

promotion board to interview and evaluate the applicants for Grade IV positions
and recommend the fifteen most qualified applicants to the Public Defender. Defs.’
Ex. 4; Tr. [157] 626:23-627:2, 628:16-23.
16.

The Grade IV promotion board was comprised solely of individual

Defendants Stephanie Hirschboeck, Crystal Marchigiani, and Darlene Williams.
Defs.’ Exs. 4, 157.
17.

Individual Defendants Hirschboeck, Marchigiani, and Williams are

female. Tr. [154] 267:20-21.
18.

At the time the Grade IV promotion board convened, Defendants

Hirschboeck, Marchigiani, and Williams each possessed over twenty-five years of
experience at the Office of the Cook County Public Defender, including important
leadership positions. See Tr. [158] 703:5; Tr. [160] 891:15-17, 950:24-951:6.
Defendant Hirschboeck served as chief of the Felony Trial Division.

Tr. [158]

713:13-15. Defendant Marchigiani served as chief of the Homicide Task Force. Tr.

6

[160] 895:10-17. Defendant Williams served as the chief of the Bridgeview Office.
Id. at 952:16-18.
19.

Bidding for the position of Grade IV Assistant Public Defender closed

on June 3, 2013. Defs.’ Ex. 1.
20.

Once bidding for the position of Grade IV Assistant Public Defender

closed, a list of applicants was compiled and sent to the Grade IV promotion board
for interviews. Defs.’ Ex. 5; Tr. [154] 266:17-24.
21.

The Grade IV promotion board interviewed thirty-eight applicants. Tr.

[158] 739:9-11.
22.

Of the thirty-eight applicants interviewed for Grade IV positions,

twenty were male and eighteen were female. Tr. [154] 266:17-24. Said another
way, of the thirty-eight applicants interviewed for Grade IV positions, 47.37% were
female, while 52.63% were male. See id.
23.

The members of the Grade IV promotion board reviewed each

applicant’s Grade IV Information Form and investigated the professional
background of each applicant prior to the applicant’s interview. Defs.’ Ex. 4.
24.

Interviews of the thirty-eight applicants occurred on July 10, 19, 22-24,

26, 30, and August 1, 2013. Defs.’ Ex. 157.
25.

Interviews conducted by the Grade IV promotion board consisted of the

following ten questions, with possible points for each question ranging from five to
fifteen points.
a. What do you think is the most significant non-murder jury case you
have tried? Why is that case significant? (10 points)
7

b. What is the most significant participation you have had in a murder
trial? What was significant? (15 points)
c. What motions do you think are most significant in cases you have
tried? (10 points)
d. What are the most significant experts for which you have been
responsible? What is your preparation for these experts? (10 points)
e. What significant investigations have you personally conducted with an
investigator? (5 points)
f. What does the phrase “sentencing advocacy” mean to you? (10 points)
g. How do you use jury instructions in your cases? (10 points)
h. How have you creatively used an exhibit? (10 points)
i. How have you effectively used technology at trial? (10 points)
j. What makes a client difficult to represent? (10 points)
Defs.’ Ex. 7.
26.

Defendants Hirschboeck, Marchigiani, and Williams drafted both the

interview questions and Grade IV Information Form by using templates from prior,
unrelated promotion panels. Tr. [156] 440:11-17, 449:2-451:9; Tr. [157] 631:9-632:3;
Tr. [158] 717:6-19, 720:21-22; Tr. [160] 897:2-7, 13-22.
27.

Defendants Hirschboeck, Marchigiani, and Williams submitted both

their interview questions and Grade IV Information Form for internal review and
approval by their supervisors (who were male) prior to their use by the promotion
board. Tr. [156] 450:16-451:9; Tr. [158] 717:20-25, 722:7-16; Tr. [160] 897:8-12.
28.

Defendants Hirschboeck, Marchigiani, and Williams chose the specific

interview and Grade IV Information Form questions based upon the qualifications,
8

knowledge, skills, and abilities were necessary for the position of Grade IV
Assistant Public Defender. Tr. [158] 719:24-720:4.
29.

After each interview, each member of the Grade IV promotion board

scored each applicant on the ten interview questions. Defs.’ Ex. 4.
30.

In scoring each question, each member of the Grade IV promotion

board considered: (1) each applicant’s Grade IV Information Form; (2) each
applicant’s interview; and (3) the investigation of each applicant’s professional
background. See Tr. [158] 755:9-16.
31.

Defendants Hirschboeck, Marchigiani, and Williams scored each

question based upon the qualifications, knowledge, skills and abilities necessary for
the position of Grade IV Assistant Public Defender. See Tr. [158] 756:14-767:18,
772:16-782:22, 798:13-799:6; Tr. [159] 837:20-24; Tr. [160] 899:6-24, 909:12-915:24,
916:21-924:6, 932:23-933-1; Tr. [161] 974:22-976:8, 977:9-21, 978:5-21, 979:22982:24, 985:1-990:20.
32.

Originally, applicants were eligible to receive up to 100 points from

each Grade IV promotion board member, for a combined total of up to 300 points.
Tr. [153] 268:6-11.
33.

During the promotion process, however, Defendants Hirschboeck,

Marchigiani, and Williams determined that two interview questions (questions
eight and nine) both dealt with the use of exhibits at trial. See Defs.’ Ex. 7 (“8. Tell
us how you have creatively used an exhibit? . . . 9. Tell us how you have effectively
used technology at trial.”); Tr. [158] 768:6-7; Tr. [161] 983:20-984:1. Defendants

9

Hirschboeck, Marchigiani, and Williams further determined that, at that point in
time, many applicants did not yet have the opportunity to utilize technology in the
courtroom. Tr. [158] 768:7-25. As a result, Defendants Hirschboeck, Marchigiani,
and Williams obtained approval to eliminate the lower of the two scores on
questions eight and nine for each applicant. Id.; Tr. [161] 984:2-4
34.

After the lower of the two scores on questions eight and nine was

eliminated, applicants were eligible to receive up to ninety points from each Grade
IV promotion board member, for a combined total of up to 270 points. Tr. [158]
769:13-22.
35.

After interviewing each applicant, the Grade IV promotion board

discussed:
a. Each applicant’s Grade IV Information Form;
b. Each applicant’s interview; and
c. The investigation of each applicant’s professional background.
Defs.’ Exs. 4, 157; Tr. [158] 771:6-24.
36.

After discussing each applicant, the Grade IV promotion board ranked

the applicants based upon the combined score awarded by the Grade IV promotion
board. Tr. [158] 784:2-15. In the event two applicants received the same combined
score, the applicant with higher seniority was ranked higher. Id. at 785:13-786:1.
37.

Of the thirty-eight interviewed applicants, two applicants, Scott

Kozicki and Brian Walsh, were deemed unqualified for promotion because they did
not possess the required number of first-chair felony jury trial experience. Defs.’

10

Exs. 157, 175; Tr. [158] 790:14-791:8.

The remaining thirty-six interviewed

applicants were deemed minimally qualified for promotion to Grade IV. Defs.’ Exs.
157, 175.
38.

Of the thirty-six interviewed applicants deemed minimally qualified

for promotion to Grade IV, fifteen were recommended for immediate promotion:
a. Bernard Okitipi (score of 258 out of 270);
b. Toya Harvey (score of 253 out of 270);
c. Andrea Webber (score of 250 out of 270);
d. Lisa Brean (score of 243 out of 270);
e. Joanne Rosado (score of 243 out of 270);
f. Steve Journey (score of 242 out of 270);
g. William Bolan (score of 242 out of 270);
h. Margaret Domin (score of 240 out of 270);
i. Steve Tyson (score of 230 out of 270);
j. Connie Jordan (score of 228 out of 270);
k. Lakshmi Jha (score of 227 out of 270);
l. Brett Balmer (score of 226 out of 270);
m. Tyria Walton (score of 225 out of 270);
n. Valerie Panozzo (score of 224 out of 270); and
o. Kelly McCarthy (score of 224 out of 270).
Defs.’ Exs. 157, 175.

11

39.

Of the fifteen interviewed applicants who were recommended for

immediate promotion to Grade IV, eleven were female, while four were male. Tr.
[153] 271:17-21. Said another way, of the fifteen interviewed applicants who were
recommended for immediate promotion to Grade IV, 73.33% were female, while
26.67% were male. See Tr. [153] 271:17-21.
40.

The four males recommended for immediate promotion were Bernard

Okitipi, Steve Journey, William Bolan, and Steve Tyson. Tr. [154] 308:10-310:23.
Overall, these candidates were ranked first, sixth, seventh, and ninth, respectively.
See Defs.’ Ex. 175.
41.

On September 6, 2013, the recommendations of the Grade IV

promotion board were submitted to the Public Defender for final determination.
Defs.’ Ex. 4. The Public Defender (who was male) approved the Grade IV promotion
board’s recommendations shortly thereafter. Defs.’ Ex. 160.
42.

Of the thirty-six interviewed applicants deemed minimally qualified,

four applicants were deemed qualified but not recommended for immediate
promotion due to the limited number of Grade IV positions available. Defs.’ Exs.
157, 175.

The Grade IV promotion board stated that if additional Grade IV

positions became available in the future, they would recommend the following
applicants in order of scoring:
a. Jennifer Gill (score of 215 out of 270);
b. Chandra Smith (score of 214 out of 270);
c. Vernon Schleyer (score of 214 out of 270); and

12

d. Lorne Gorelick (score of 213 out of 270).
Defs.’ Exs. 157, 175.
43.

Of the four applicants deemed qualified but not recommended for

immediate promotion, two were female and two were male. Tr. [154] 313:21-314:5.
44.

The two males deemed qualified but not recommended for immediate

promotion were Vernon Schleyer and Lorne Gorelick. Id. at 313:21-314:5. Overall,
these candidates were ranked eighteenth and nineteenth, respectively. See Defs.’
Ex. 175.
45.

The four applicants deemed qualified but not recommended for

immediate promotion were each promoted to the position of Grade IV Assistant
Public Defender over the next several months. Tr. [159] 851:17-20.
46.

Of the thirty-six interviewed applicants deemed minimally qualified,

seventeen were not recommended for promotion to Grade IV:
a. Kevin Ochalla (score of 196 out of 270);
b. Adolfo Simmonds (score of 192 out of 270);
c. Paul Brownlee (score of 191 out of 270);
d. Camille Calabrese (score of 191 out of 270);
e. Rosa Silva (score of 190 out of 270);
f. Wendy Steiner (score of 179 out of 270);
g. Mark Douglass (score of 177 out of 270);
h. Juanita Lawson-Robinson (score of 150 out of 270);
i. Christopher Sneed (score of 147 out of 270);

13

j. Rebecca Gold (score of 139 out of 270);
k. Roger Warner (score of 133 out of 270);
l. Peter Benesh (score of 130 out of 270);
m. Jeff Walker (score of 120 out of 270);
n. [Plaintiff] Patrick White (score of 109 out of 270);
o. Paul Laurent (score of 103 out of 270);
p. Richard Paull (score of 79 out of 270); and
q. Paul Christiansen (score of 72 out of 270).
Defs.’ Exs. 157, 175.
47.

Of the seventeen interviewed applicants who were not recommended

for promotion to Grade IV, five were female and twelve were male. See Defs.’ Exs.
157, 175; Tr. [154] 266:17-24.
48.

Overall, Plaintiff ranked thirty-third out of the thirty-six applicants

deemed minimally qualified. Defs.’ Exs. 157, 175; Tr. [153] 272:18-20.
49.

On or about September 21, 2015, based upon a union seniority

grievance and compromise not including Plaintiff or the individual defendants, a
new promotion list was created using the promotion rankings originally created by
the individual Defendants, adjusting for seniority. Tr. [154] 430:19-23.
50.

From this new list, the following five individuals later received

promotions to the position of Grade IV Assistant Public Defender:
a. Mark Douglas was promoted on June 29th, 2015;
b. Kevin Ochalla was promoted on December 28th, 2015;

14

c. Rosa Silva was promoted on February 5th, 2016;
d. Roger Warner was promoted on February 6th, 2017; and
e. Wendy Steiner was promoted on February 10th, 2017.
Tr. [154] 430:24-431:8.
51.

Of the five individuals who later received promotions to the position of

Grade IV Assistant Public Defender as a result of the union seniority grievance and
compromise, two were female, and three were male. See Defs.’ Exs. 157, 175; Tr.
[154] 266:17-24, 430:24-431:8.
II.

Conclusions of Law
The “disparate impact” theory under Title VII allows plaintiffs to recover for

“employment practices that are facially neutral in their treatment of different
groups” but that, in fact, fall “more harshly on one group than another and cannot
be justified by business necessity.” Int’l Bhd. of Teamsters v. United States, 431
U.S. 324, 336 n. 15 (1977); see also Farrell v. Butler Univ., 421 F.3d 609, 616 (7th
Cir. 2005) (holding that an employer is liable under Title VII pursuant to a
disparate

impact

theory

“when

a

facially

neutral

employment

practice

disproportionately impacts members of a legally protected group”). To establish a
prima facie case of disparate impact, “the plaintiff is responsible for isolating and
identifying the specific employment practices that are allegedly responsible for any
observed statistical disparities.” Puffer v. Allstate Ins. Co., 675 F.3d 709, 717 (7th
Cir. 2012) (quoting Watson v. Fort Worth Bank & Tr., 487 U.S. 977, 994-95 (1988)).
In addition, the plaintiff must offer “statistical evidence of a kind and degree

15

sufficient to show that the practice in question” has disproportionally affected male
workers because of their gender.

Id. (internal quotation omitted).

Once the

plaintiff offers sufficient statistical evidence, then the burden shifts “to the
defendant-employer to demonstrate that the employment practice is job related for
the position in question and consistent with business necessity.” Id. If this occurs,
“it remains open to the complaining party to show that other tests or selection
devices,” without a similarly undesirable effect, “would also serve the employer’s
legitimate interest in ‘efficient and trustworthy workmanship.” Allen v. City of
Chicago, 351 F.3d 306, 312 (7th Cir. 2003) (quoting Albemarle Paper Co. v. Moody,
422 U.S. 405, 425 (1975)); see also 42 U.S.C. § 2000e-2(k)(1)(A)(ii). The proposed
alternative “must be available, equally valid and less discriminatory.” Allen, 351
F.3d at 312.
At trial, Plaintiff identified two “specific employment practices” which he
contended were responsible for disparate outcomes in the promotion process: (1) the
formulation of Grade IV promotion board interview questions; and (2) the subjective
scoring of the Grade IV interview questions. 1
52.

Plaintiff wholly failed, however, to adduce sufficient statistical

evidence tying these employment practices to disparate treatment of male
applicants. It was undisputed that of the thirty-eight interviewees for Grade IV
positions, twenty (or 52.63%) were male and eighteen (or 47.37%) were female. Tr.
[154] 266:17-24.

In contrast, eleven of the fifteen applicants ultimately

Although Plaintiff also attacked Defendants’ distribution of courtroom assignments, case
assignments, and training opportunities, he later waived that aspect of his disparate impact claim at
the summary judgment stage. See Mem. Op. and Order [114] 15 n. 4.
1

16

recommended for immediate promotion (73.33%) were female, while four (26.67%)
were male. Tr. [153] 271:17-21. When the four applicants who were promoted later
are taken into account, the total promotion numbers equal thirteen (68.42%) female
and six (31.58%) male. See Tr. [154] 313:21-314:5. If the five individuals who later
received promotions as a result of the union seniority grievance and compromise are
factored into the analysis, the total promotion numbers equal fifteen (62.5%) female
and nine (37.5%) male. See Defs.’ Exs. 157, 175; Tr. [154] 266:17-24.
Although these superficial disparities may have been enough to withstand
judgment as a matter of law, they fell far short of satisfying Plaintiff’s burden of
proof. For one, courts have long recognized that “the probative value of statistical
evidence varies with sample size in disparate-impact cases.” See Connecticut v.
Teal, 457 U.S. 440, 463 n. 7 (1982); Int’l Bhd. of Teamsters v. United States, 431
U.S. 324, 340 n. 20 (1977) (“Considerations such as small sample size may, of
course, detract from the value of such evidence.”); Ingram v. NWS, Inc., No. 92-cv8339, 1997 WL 688882, at *12 (N.D. Ill. Oct. 23, 1997) (“The usefulness of a
statistical analysis is dependent upon the size of the sample used: the smaller the
size of the sample, the greater the possibility that any disparities are due to
chance.”).

Indeed, where “the sample size or alleged effect is so statistically

insignificant that no inference of discriminatory impact is proper, plaintiff fails to
present a prima facie case.” Morgan v. Harris Tr. & Sav. Bank of Chicago, 867 F.2d
1023, 1028 (7th Cir. 1989).

17

Here, Plaintiff’s exceedingly small sample size (at most twenty-four
individuals) severely undermined the probative value of his statistical evidence. As
“a general matter, statistics drawn from smaller samples are suspect and evaluated
with caution,” Ingram, 1997 WL 688882, at *12 (citing Lucas v. Dover Corp., 857
F.2d 1397, 1403 (10th Cir. 1988) (stating that sample size of eighteen “must be
evaluated with caution”); Simpson v. Midland–Ross Corp., 823 F.2d 937, 943 & n. 7
(6th Cir. 1987) (calling sample size of seventeen “suspect”)), and “statistics drawn
from particularly small samples have been rejected as untrustworthy and
irrelevant.” Id. (citing Parker v. Fed. Nat. Mortg. Ass’n, 741 F.2d 975, 980 (7th Cir.
1984) (sample size of twelve lacked “sufficient breadth to be trustworthy”); Deuschle
v. Unisys Corp., No. 90-cv-3267, 1992 WL 312647, at *4 (C.D. Ill. June 4, 1992),
aff’d, 993 F.2d 1549 (7th Cir. 1993) (sample size of fifteen)); see also Mayor of City of
Philadelphia v. Educ. Equal. League, 415 U.S. 605, 621 (1974) (sample size of
thirteen); Morgan, 867 F.2d at 1028 (7th Cir. 1989) (sample size of twenty-five);
Soria v. Ozinga Bros., 704 F.2d 990, 995 (7th Cir. 1983) (sample size of fifteen);
Harris v. Group Health Association, Inc., 662 F.2d 869, 872 (D.C. Cir. 1981) (sample
size of fourteen). 2

Despite Plaintiff’s complaints about the percentage of men

Although not cited by Plaintiff, the small sample size presented here also undermines application of
the Equal Employment Opportunity Commission’s “four-fifths rule.” See 29 C.F.R. § 1607.4 (“A
selection rate for any race, sex, or ethnic group which is less than four-fifths (4/5) (or eighty percent)
of the rate for the group with the highest rate will generally be regarded by the Federal enforcement
agencies as evidence of adverse impact, while a greater than four-fifths rate will generally not be
regarded by Federal enforcement agencies as evidence of adverse impact. . . . Greater differences in
selection rate may not constitute adverse impact where the differences are based on small numbers
and are not statistically significant.”) (emphasis added). Regardless, the Seventh Circuit has noted
substantial criticism of the rule. See Cox v. City of Chicago, 868 F.2d 217, 220 n. 1 (7th Cir. 1989).
2

18

recommended for promotion here, the law simply does not require rigid quotas or
formulaic percentages in hiring decisions.
Furthermore, not only was Plaintiff’s sample size inadequate, he also failed
to interpret the resulting statistical disparities through any expert testimony. Of
course, expert analysis is not a formal prerequisite to a disparate impact finding.
Nevertheless, such evidence would have helped buttress this Court’s “inevitable
focus on statistics,” see Watson v. Fort Worth Bank & Tr., 487 U.S. 977, 992 (1988),
particularly given the deficiencies raised by Plaintiff’s small sample size. See, e.g.,
Pietras v. Bd. of Fire Comm’rs of Farmingville Fire Dist., 180 F.3d 468, 475 (2d Cir.
1999) (upholding finding of disparate impact despite sample size of seven where the
plaintiff “presented more than just statistics”; plaintiff also “provided expert
testimony on the disparate impact,” which combined with statistics, “comfortably
tip[ped] the scales in favor of the district court’s finding of disparate impact”); see
also Boston Police Superior Officers Fed’n v. City of Boston, 147 F.3d 13, 22 (1st Cir.
1998) (holding that a small statistical sample plus expert testimony can support a
finding of disparate impact); Fudge v. City of Providence Fire Dep’t, 766 F.2d 650,
659 (1st Cir. 1985) (Breyer, J., concurring) (“Where samples are small, other
evidence of ‘disparate impact’ may be highly relevant.”) (emphasis in original).
In short, the evidence adduced at trial utterly failed to establish a prima facie
case.

Moreover, even assuming, arguendo, that Plaintiff offered sufficient

statistical proof, Defendants clearly demonstrated that both the formulation and
scoring of the Grade IV interview questions were consistent with business necessity.

19

Defendants Hirschboeck, Marchigiani, and Williams each credibly testified that
their actions were based upon an honest desire to promote the most qualified
candidates.

See Tr. [158] 756:14-767:18, 772:16-782:22, 798:13-799:6; Tr. [159]

837:20-24; Tr. [160] 899:6-24, 909:12-915:24, 916:21-924:6, 932:23-933-1; Tr. [161]
974:22-976:8, 977:9-21, 978:5-21, 979:22-982:24, 985:1-990:20. The various aspects
of the promotion process, including the formulation and scoring of interview
questions, were designed with this legitimate goal in mind.
In response, Plaintiff failed to offer any alternative employment practice that
would also serve the Office of the Cook County Public Defender’s legitimate
business interests. Instead, he merely critiqued the merits of Defendants’ specific
promotion criterion.

This Court, however, does “not sit as a super-personnel

department” ready to second-guess an employer’s business decisions. See Gordon v.
United Airlines, Inc., 246 F.3d 878, 889 (7th Cir. 2001).

Plaintiff’s criticisms,

therefore, were misplaced. The question is not whether the employment decisions
were right or fair, but rather whether or not they were discriminatory. Based upon
the evidence presented, they were not.
III.

Conclusion
In light of the record and the reasons noted above, the Court found in favor of

the Office of the Cook County Public Defender on Plaintiff’s disparate impact claim.
Dated: August 14, 2017

Entered:
____________________________
John Robert Blakey
United States District Judge
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