                              In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 02-3743
PERCY ALLEN, YVETTE CLINKSCALE,
PAUL GERGOIRE, 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 C 7673—Joan B. Gottschall, Judge.
                          ____________
   ARGUED SEPTEMBER 25, 2003—DECIDED DECEMBER 9, 2003
                          ____________


  Before CUDAHY, RIPPLE and KANNE, Circuit Judges.
   RIPPLE, Circuit Judge. African-American and Hispanic
police officers employed by the City of Chicago (the “City”)
filed a complaint against the City for engaging in discrim-
inatory promotions in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. The district
court certified two subclasses of officers adversely affected
by the 1998 promotion process. One subclass moved for
summary judgment, and the City cross-moved for summary
judgment as to both subclasses. The district court granted
the City’s motion as to both subclasses. The subclasses
2                                                     No. 02-3743

appeal. For the reasons set forth in the following opinion,
we affirm the judgment of the district court.


                                 I
                        BACKGROUND
  Throughout the last three decades, minority and non-mi-
nority police officers have challenged the City of Chicago’s
hiring and promotion procedures as discriminatory. In
response, the City has implemented various remedial mea-
sures, including quotas, race norming, affirmative action,
promotional examinations and merit selection procedures.
The history of these challenges and the City’s response is set
forth thoroughly in Barnhill v. City of Chicago, Police Depart-
                                                         1
ment, 142 F. Supp. 2d 948, 950-56 (N.D. Ill. 2001). That
background also has been noted in Adams v. City of Chicago,
135 F.3d 1150, 1152 (7th Cir. 1998).
  This appeal arises from a challenge to the 1998 sergeant’s
promotional process by minority officers who were not se-
lected for promotion from officer to sergeant. Subclass A
plaintiffs are minority officers who failed a written quali-
fying test and were not eligible for promotions based on
merit or assessment scores. Subclass B plaintiffs are minor-
ity officers who passed the written qualifying test but were
not promoted on the basis of merit or assessment scores.
The 1998 sergeant promotional process had a disparate
impact on minority officers, and the officers appeal the
process as discriminatory.


1
  Barnhill v. City of Chicago, Police Department, 142 F. Supp. 2d 948
(N.D. Ill. 2001), also involves a challenge to the 1998 sergeant
promotions; the Barnhill challenge was brought by white male
officers. Id. at 950.
No. 02-3743                                                         3

A. Facts
       1. The 1998 Process for Sergeant Promotions
  After litigation involving the 1994 sergeant and lieutenant
                          2
promotional processes, the City established the Police
Department Promotion and Testing Task Force (the “Task
Force”). The Task Force reviewed the work of an earlier
Blue Ribbon Panel which had also met and made recom-
mendations regarding selection procedures for the Chicago
Police Department (the “CPD”). One purpose of the Task
Force was to reassess the status of the promotional pro-
cesses in the CPD.
  After meeting, the Task Force made various recommenda-
tions as to the components of the promotional process
to sergeant. The Task Force recommended that the City
employ “several different types of examinations to test a
broader set of knowledge, skills and abilities.” R.54, Ex.1
at 5. One of the examinations recommended by the Task
Force was a written qualifying test “designed to evaluate
skills, knowledge and abilities that sergeants . . . need on
their first day on the job.” Id. at 6. The Task Force noted:
“Everyone who achieves a passing score on the qualifying
examination should be eligible for further consideration in
the promotional process.” Id. at 7.


2
   See Adams v. City of Chicago, 135 F.3d 1150, 1155 (7th Cir. 1998)
(holding that the plaintiffs could not establish irreparable harm
to justify a preliminary injunction preventing allegedly discrim-
inatory promotions to sergeant); Brown v. City of Chicago, 8
F. Supp. 2d 1095, 1113 (N.D. Ill. 1998) (holding that the City
violated Title VII when a merit promotions element was dropped
from the lieutenant promotional process because merit promo-
tions combined with rank order promotions presented an equally
valid, less discriminatory alternative), aff’d sub nom. Bryant v. City
of Chicago, 200 F.3d 1092 (7th Cir. 2000).
4                                                No. 02-3743

  The Task Force also recommended the inclusion of “a
merit selection process” in the promotional process and
explained its recommendation as follows:
    The qualifying examination can test knowledge, skills
    and abilities, but it cannot identify police men and
    women who have exhibited exceptional leadership in
    the field. Using the existing merit selection process for
    detectives as a model, the Department should identify
    police officers who have demonstrated superior ability,
    responsibility and dedication to police service. In order
    to identify these exceptional leaders, the CPD should
    institute a merit selection process for promotions to
    sergeant . . . as an addition to a qualifying examination.
Id. The Task Force specifically stated that “[m]erit selection
candidates should still be required to take and pass the
qualifying exam.” Id. It also recommended that the percent-
age of promotions made through merit selection be limited
to thirty percent. The chair of the Task Force later testified
that the thirty-percent ceiling on merit selection was a “hit
and miss” number but that it was based on the previous
successfulness of twenty-percent merit promotions to de-
tective and youth officer. R.57 at ¶ V.05.
  The City employed Jeanneret and Associates, outside
consultants, to design the promotional exam. After conduct-
ing a job study, the consultants initially proposed a promo-
tional process that differed in certain respects from the
recommendations made by the Task Force. The process
designed by the consultants included only a pass-fail writ-
ten qualifying test and a separate written assessment ex-
ercise designed to measure knowledge, skills, abilities and
personal characteristics required in the sergeant position.
Individuals who passed the qualifying test would be eligible
to take the assessment exercise, and promotions would be
made in rank-order based on performance on the assess-
ment exercise.
No. 02-3743                                                        5

  Given the Task Force recommendations, the City asked
the consultants to include a merit selection component with
job-related validity. In response, the consultants reviewed
the sergeant job analysis with subject matter experts and
defined factors such as leadership, mentoring, decision-
making and interpersonal relations that are important to the
sergeant position but less easily tested by the assessment
exercise. The consultants and representatives of the CPD
then designed a nomination process to identify candidates
who possessed these traits. Passage of the written qualifying
test was a prerequisite to promotion through the merit
selection process.
  The 1998 promotional process design ultimately adopted
by the City included a written qualifying test, an assessment
exercise and a merit selection component. The written
qualifying test, a multiple choice examination designed to
test knowledge necessary for the first day on the job, was
                                  3
developed by content-validation. The subject matter experts
and consultants recommended the qualifying score, which
represented the score a minimally qualified sergeant would
be expected to obtain. Individuals who passed the written
qualifying test were eligible for promotion through either
performance on the assessment exercise or merit selection.




3
  Content-validation is one means of showing the validity of a
selection procedure under the Equal Employment Opportunity
Commission (“EEOC”) Uniform Guidelines on Employee
Selection Procedures. See 29 C.F.R. § 1607.5(B) (“Evidence of the
validity of a test or other selection procedure by a content validity
study should consist of data showing that the content of the
selection procedure is representative of important aspects of
performance on the job for which the candidates are to be
evaluated.”).
6                                               No. 02-3743

  The assessment exercise, designed to ensure that sergeant
candidates had the knowledge, skills, abilities and personal
characteristics required for situations sergeants might en-
counter on their first day on the job, also was developed by
content-validation. The assessment exercise was a simu-
lation exercise requiring written responses. It focused on
work-related behaviors and activities, such as officer
supervision, subordinate evaluation, review of reports and
situational judgment.
  The merit selection component involved a three-tier pro-
cess. Commanders were permitted to nominate between one
and five members of their chain of command who demon-
strated exemplary performance with respect to the merit-
based traits identified by the subject matter experts and
consultants. Nominators were required to attend training;
were instructed to avoid biases, stereotypes and assessment
errors, such as personal likes and dislikes; and were re-
quired to submit nominations in a specified format. Nomi-
nators were allowed to assess and submit only their most
qualified officers and were held accountable for the nomina-
tions submitted and the accuracy of information contained
therein. A group of high-level CPD command personnel, the
Academic Selection Board (“ASB”), then reviewed the
nominations and other data on the nominees. The ASB
forwarded a select number of the nominees to the CPD
Superintendent, who made the final decisions on merit-
based promotions. Merit promotions were limited to thirty
percent of the total number of promotions made.


      2. Results of the 1998 Promotions to Sergeant
  In January of 1998, 3201 officers took the written qualify-
ing test: 1672 were white; 1074 were African-American; 414
were Hispanic; and 41 were of other races. Of the officers
No. 02-3743                                                     7

taking the written qualifying test, 2682 passed: 1518 of
whom were white; 787 of whom were African-American;
340 of whom were Hispanic; and 37 of whom were of other
races. The success rate was 90.8% for whites, 73.3% for
African-Americans, 82.1% for Hispanics and 90.2% for those
of other races. Under a test for statistical significance, the
written qualifying test had a disparate impact on African-
            4
Americans.
  A total of 251 officers were subsequently promoted to
sergeant. 178 were promoted on the basis of performance on
the rank-order assessment exercise. Of this number, 140
were white; 26 were African-American; 10 were Hispanic;
and 2 were of other races. The success rate was 9.8% for
whites, 3.4% for African-Americans, 3.1% for Hispanics and
5.7% for those of other races. Under the Equal Employment
Opportunity Commission (“EEOC”) Uniform Guidelines,
the assessment exercise had a disparate impact on African-
                                 5
American and Hispanic officers.



4
   African-Americans passed at a rate of 80.7% of the white rate,
and Hispanics passed at a rate of 90.4% of the white rate. The
written qualifying test thus did not have a disparate impact on
either African-Americans or Hispanics under the EEOC 80% rule.
See 29 C.F.R. § 1607.4(D) (“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.”).
5
  The success rate for African-Americans was 34.7% of the white
rate, and the success rate for Hispanics was 31.6% of the white
rate; thus, both groups passed at a rate lower than 80% of the
white rate.
8                                               No. 02-3743

  Seventy-three officers were promoted on the basis of merit
selection. Of this number, 40 were white; 23 were African-
American; 9 were Hispanic; and 1 was of another race. The
success rate was 2.9% for whites, 3.0% for African-Ameri-
cans, 2.7% for Hispanics and 2.9% for those of other races.
Merit promotions had no disparate impact on any racial
                                             6
subset under the EEOC Uniform Guidelines.
  African-American and Hispanic officers, who comprise
Subclass B, challenged the thirty-percent ceiling on merit
promotions as discriminatory. They argued that merit pro-
motions should be made at a greater percentage of the total
number of promotions made. African-American officers,
who comprise Subclass A, challenged the written qualifying
test as discriminatory. They argued that the City should
make merit promotions without requiring the officers to
pass the written qualifying test.


B. Proceedings in the District Court
  Upon Subclass B’s motion for summary judgment and the
City’s cross-motions for summary judgment as to both
subclasses, the district court granted summary judgment to
the City on the claims of Subclass A and Subclass B. The
district court determined that Subclass B had not established
an equally valid, less discriminatory alternative, and thus
the City was entitled to summary judgment. With respect to
the claim of Subclass A, the court found that the merit


6
  African-Americans had the highest success rate; the white
success rate was 96.7% of the African-American rate, and the
Hispanic success rate was 90.0% of the African-American rate.
Thus, no group passed at a rate lower than 80% of any other
group.
No. 02-3743                                                  9

selection component was validated only with the written
qualifying test prerequisite. Because there was no showing
of the stand-alone validity of the merit component, the City
was entitled to summary judgment on Subclass A’s claim as
well. The Subclass A and B plaintiffs timely appealed.


                              II
                       DISCUSSION
A. Standard of Review
  This court reviews de novo the district court’s grant of
a motion for summary judgment, as well as the district
court’s disposition of cross-motions for summary judgment.
See O’Regan v. Arbitration Forums, Inc., 246 F.3d 975, 983 (7th
Cir. 2001). We view all facts and draw all reasonable
inferences in the light most favorable to the non-moving
party. Id. In considering cross-motions for summary judg-
ment, “ ‘our review of the record requires that we construe
all inferences in favor of the party against whom the motion
under consideration is made.’ ” Id. (quoting Hendricks-
Robinson v. Excel Corp., 154 F.3d 685, 692 (7th Cir. 1998)).
Summary judgment is appropriate when there is no genuine
issue of material fact, and the party is entitled to judgment
as a matter of law. See Fed. R. Civ. P. 56(c).


B. Subclass B’s Disparate Impact Claim
  Subclass B officers challenge the thirty-percent ceiling on
merit promotions as the “particular employment practice”
that caused a disparate impact in violation of Title VII. See
10                                                       No. 02-3743
                            7
42 U.S.C. § 2000e-2(k). In the district court, Subclass B offi-
cers proposed that thirty-five, forty or fifty-percent merit-
based promotions would be practicable. In their brief to this
court and at oral argument, the officers argued that seventy
percent of promotions should be merit-based.


                         1. Burden of Proof
  To succeed on a disparate impact claim, plaintiffs bear the
burden of showing that a particular employment practice
causes a disparate impact on the basis of race. Once this
impact is shown, the defendant must demonstrate that the


7
  The relevant portions of 42 U.S.C. § 2000e-2(k) provide the
following:
    (k) Burden of proof in disparate impact cases
      (1)(A) An unlawful employment practice based on disparate
      impact is established under this subchapter only if—
            (i) a complaining party demonstrates that a respondent
            uses a particular employment practice that causes a
            disparate impact on the basis of race, color, religion, sex,
            or national origin and the respondent fails to demon-
            strate that the challenged practice is job related for the
            position in question and consistent with business
            necessity; or
            (ii) the complaining party makes the demonstration
            described in subparagraph (C) with respect to an alter-
            native employment practice and the respondent refuses
            to adopt such alternative employment practice.
      ***
      (C) The demonstration referred to by subparagraph (A)(ii)
      shall be in accordance with the law as it existed on June 4,
      1989, with respect to the concept of “alternative employment
      practice”.
No. 02-3743                                                      11

practice is “job related” and “consistent with business
necessity.” 42 U.S.C. § 2000e-2(k)(1)(A)(i). If the defendant
makes this showing, plaintiffs can still prevail by demon-
strating that an alternative employment practice exists, and
the defendant refuses to adopt it. See 42 U.S.C. § 2000e-
2(k)(1)(A); see also Albemarle Paper Co. v. Moody, 422 U.S. 405,
425 (1975).
   As we noted earlier, in this case, promotions made on
the basis of the assessment exercise did have a disparate
impact on African-American and Hispanic officers. The of-
ficers agree, however, that the assessment exercise com-
ponent of the promotional process was job related and
consistent with business necessity. R.66 at ¶ 96. Therefore,
the only remaining issue in the burden-shifting analysis is
the existence of a substantially equally valid, less discrimi-
                                              8
natory alternative employment practice. See 42 U.S.C.
§ 2000e-2(k)(1)(A); 29 C.F.R. § 1607.3(B) (“Where two or
more selection procedures are available which serve the
user’s legitimate interest in efficient and trustworthy work-


8
   In their brief, the officers argue that they challenge “whether
the thirty percent ceiling on the non-discriminatory merit pro-
motions is job related and consistent with business necessity.”
Appellants’ Br. at 10. As the City notes, the officers previously
moved the district court to limit the issues “to the question of
whether making more than 30% of the promotions through merit
selection would be an ‘equally valid, less discriminatory alterna-
tive’ under 42 U.S.C. 2000e-2(k)(1)(A)(ii).” R.24 at 1. The district
court granted this motion. As a result, questions as to the job
relatedness and business necessity of the promotional process
components were not raised below and are waived on appeal. See
Grayson v. O’Neill, 308 F.3d 808, 817 (7th Cir. 2002) (“It is well-
established that a party waives the right to argue an issue on
appeal if he fails to raise that issue before the trial court.”).
12                                                 No. 02-3743

manship, and which are substantially equally valid for a
given purpose, the user should use the procedure which has
been demonstrated to have the lesser adverse impact.”).
  Under the framework of 42 U.S.C. § 2000e-2(k)(1)(A)(ii),
the officers must demonstrate the existence of an equally
valid, less discriminatory employment practice. As a result
of the 1991 Amendments to the Civil Rights Act, Pub. L.
102-166, § 105(a), 105 Stat. 1071, 1074 (1991) (codified at 42
U.S.C. § 2000e-2(k)), plaintiffs seeking to demonstrate a less
discriminatory alternative must do so under the law that
existed prior to the Supreme Court’s decision in Wards Cove
Packing Co. v. Atonio, 490 U.S. 642 (1989). See 42 U.S.C.
§ 2000e-2(k)(1)(C); see also Price v. City of Chicago, 251 F.3d
656, 660 (7th Cir. 2001). Prior to Wards Cove, the Supreme
Court expressed the controlling principle in Albemarle: “If an
employer does then meet the burden of proving that its tests
are ‘job related,’ it remains open to the complaining party to
show that other tests or selection devices, without a simi-
larly undesirable racial effect, would also serve the em-
ployer’s legitimate interest in ‘efficient and trustworthy
workmanship.’ ” Albemarle, 422 U.S. at 425 (quoting
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801 (1973)).
The proposed alternative must be available, equally valid
and less discriminatory. See Bryant v. City of Chicago, 200
F.3d 1092, 1094 (7th Cir. 2000).


        2. Assessment of the Officers’ Alternative
  Before turning to the merits of the officers’ proposed
alternative, we first consider an initial matter. Throughout
the course of this litigation, the officers have proposed four
different percentages of increased merit promotions: Thirty-
five, forty, or fifty percent was suggested at the district court
No. 02-3743                                                  13

level, and seventy percent was argued on appeal. These
variations of the proposed alternative raise two separate
concerns. First, the statutory scheme requires plaintiffs to
demonstrate a viable alternative and give the employer an
opportunity to adopt it. See 42 U.S.C. § 2000e-2(k)(1)(A). A
vague or fluctuating proposed alternative ordinarily would
frustrate this statutory scheme. Here, however, the City has
rejected any increased use of merit-based promotions; thus
the officers’ ambivalence as to the specific increased per-
centage has not frustrated entirely the City’s opportunity to
adopt a less discriminatory alternative. Nonetheless, we
share the concerns of the district court that “such a vague
and indefinite proposal” may not qualify as an “alternative
employment practice,” the existence of which the officers
have the burden to demonstrate. R.70 at 7. Second, the
officers’ seventy-percent merit-based proposal was raised
for the first time on appeal. Because the seventy-percent
proposal was not raised before the district court, we gener-
ally would not consider it.
  Despite these concerns, we assume for purposes of this
appeal that the officers’ consistent advocacy of some in-
creased percentage of merit-based promotions constitutes a
proposed “alternative employment practice.” Cf. Niedert v.
Rieger, 200 F.3d 522, 527-28 (7th Cir. 1999) (noting that issues
raised for the first time on appeal are generally not decided
but proceeding to merits where both parties addressed the
issue in their briefs and at oral argument). To prevail, the
officers therefore must demonstrate that an increased
percentage of merit-based promotions would be of substan-
tially equal validity as merit-based promotions at the thirty-
percent level and that increased merit-based promotions
would be less discriminatory than the present promotion
arrangement. The officers have established neither proposi-
tion.
14                                                  No. 02-3743

  The City and the officers agree that merit-based promo-
tions at the thirty-percent level are of substantially equal
validity as assessment-based promotions. See R.57 at
¶ IV.13-15; R.66 at ¶ 170. The parties disagree, however, on
the issue of whether merit-based promotion at an increased
level would be of substantially equal validity as seventy-
percent assessment-based promotions. The officers effec-
tively bear the burden of establishing that the last officer
promoted under an increased merit-based selection process
would be roughly as qualified as the officer with the current
lowest score on the assessment exercise. See Albemarle, 422
U.S. at 425; Bryant, 200 F.3d at 1094.
  To meet this burden, the officers rely upon the City’s
defense of the thirty-percent merit selection component in
this and other litigation. See Barnhill v. City of Chicago, Police
Dep’t, 142 F. Supp. 2d 948 (N.D. Ill. 2001) (defending the
merit selection process used in 1998 promotions against a
challenge brought by white officers). The officers cannot,
however, rely entirely on the validity of merit promotions
at the thirty-percent level. As the officers admit, increasing
merit-based promotions would require a different merit-
based selection procedure. Indeed, under the officers’ alter-
native process for increased merit selection at the seventy-
percent level, nominators would be required to select nearly
twice as many individuals so that the ASB might cull the
same percentage. Moreover, under the officers’ proposal,
the Superintendent would have no role. Significantly, the
record contains evidence that performance-based selection
systems have recognized limitations, such as being skewed
toward the top end of the scale and encouraging inflated
ratings by supervisors who seek to obtain awards for
subordinates. As the number of nominees increase, those
limitations become more problematic. Because increasing
the percentage of merit-based promotions actually creates
No. 02-3743                                                        15

a different merit selection procedure with increased poten-
tial for evaluation error, the officers must separately show
the substantially equivalent validity of increased merit
promotions. The officers do not attempt to do so.
  Instead, the officers submit that they “should not be
required to come forward with evidence to show a corre-
lation between their alternative procedure and job perfor-
mance.” Appellants’ Reply Br. at 2. This argument directly
contradicts their burden under the framework of 42 U.S.C.
                                                      9
§ 2000e-2(k)(1)(A)(ii) and Albemarle, 422 U.S. at 425. With-
out any evidence that the officers’ alternative of increasing
merit promotions would lead to a workforce substantially
equally qualified, we cannot accept the officers’ alternative
as substantially equally valid.
 The officers make a related argument, however, that
warrants consideration. They maintain that the thirty-


9
   We note that the officers did argue the feasibility of increased
nominations. The problem is that this feasibility alone does not
carry the officers’ burden. The ability of a nominator to select
more candidates simply does not answer whether the last merit-
based officer promoted would be roughly as qualified as the last
score-based officer promoted. A mere assertion that increased
merit promotions would result in equally qualified officers being
promoted to sergeant does not meet the officers’ statutory
burden. Cf. Gillespie v. State of Wisconsin, 771 F.2d 1035, 1045 (7th
Cir. 1985) (holding that the plaintiff failed to establish an alterna-
tive selection procedure because he failed to demonstrate that
any of his hypothetical alternatives would have measured
adequately an applicant’s ability to communicate in English and
analyze information). Furthermore, the City argues that although
nominators can select exceptionally qualified officers, it is more
difficult for nominators to differentiate between officers who are
merely qualified.
16                                                No. 02-3743

percent ceiling on merit-based promotions is arbitrary,
given its “hit and miss” characterization by the chair of the
Task Force. The City responds that the thirty-percent level
was based on the Task Force’s recommendation, which in
turn represented a conservative increase from the twenty-
percent level which had been successful in the context
of promotions to other ranks. The City was also aware, how-
ever, of the limitations of nomination-based procedures and
their increased prevalence as the number of nominations
rise. Thus, the record indicates that the City deliberately
chose a slightly increased percentage of merit-based promo-
tions than used in the past while cognizant of the limitations
of performance-based selection systems. We agree with the
district court that the thirty-percent level cannot therefore
fairly be characterized as arbitrary. In the absence of
sufficient evidence that a higher percentage would work
effectively, the City was justified in making a prudential
judgment based on its prior experience.
  In Watson v. Fort Worth Bank & Trust, 487 U.S. 977 (1988),
Justice O’Connor, writing for the plurality, noted that
“[f]actors such as the cost or other burdens of proposed
alternative selection devices are relevant in determining
whether they would be equally as effective as the chal-
lenged practice in serving the employer’s legitimate busi-
ness goals.” Id. at 998. Increasing merit-based promotions,
particularly to the level of seventy percent as suggested by
the officers on appeal, would require nominators to rec-
ommend nearly twice as many officers and would require
the ASB to review nearly twice the number of applications.
This increased burden must be weighed against the distinct
possibility that a higher percentage of merit-based promo-
tions would not be as equally effective in achieving the
City’s goals. See Clady v. County of Los Angeles, 770 F.2d 1421,
1432 (9th Cir. 1985) (“Financial concerns are legitimate
needs of the employer.”).
No. 02-3743                                                     17

  Thus, given the officers’ failure to establish the validity of
merit promotions at an increased level, the reasonableness
of the thirty-percent level, and the burden that substantially
increased merit-based promotions would entail, we must
conclude that the officers have not met their burden of
establishing that increased merit-based promotions repre-
sent an equally valid alternative. We repeat the district
court’s caveat, however, that a higher percentage of merit-
based promotions may in fact be valid, and we emphasize
the City’s responsibility to re-examine the promotional
                       10
process for currency. We hold only that the officers have
not carried their burden as to the validity of increased merit
promotions.
  Even if the officers had shown that increasing merit-based
promotions would be equally valid, they also would have
to demonstrate that such a procedure would be less discrim-
inatory. See 42 U.S.C. § 2000e-2(k)(1)(A)(ii); see also
Albemarle, 422 U.S. at 425. The officers rely upon the fact that
the merit-based sergeant promotions did not have a dispa-
rate impact nor did previous merit-based promotions in


10
  The Uniform Guidelines on Employee Selection Procedures
require reasonable review of valid selection methods which have
a disparate impact. See 29 C.F.R. § 1607.3(B) (“[W]henever a
validity study is called for by these guidelines, the user should
include, as a part of the validity study, an investigation of
suitable alternative selection procedures and suitable alternative
methods of using the selection procedure which have as little
adverse impact as possible, to determine the appropriateness of
using or validating them in accord with these guidelines. If a user
has made a reasonable effort to become aware of such alternative
procedures and validity has been demonstrated in accord with
these guidelines, the use of the test or other selection procedure
may continue until such time as it should reasonably be reviewed
for currency.”).
18                                                    No. 02-3743

other ranks. From this evidence, the officers argue that
increased merit-based promotions would be less discrimina-
tory than the process employed.
  Although past merit selections did not have a disparate
impact, this history is the only evidence to suggest that a
non-discriminatory pattern would result from an increased
level of merit-based promotions. This court previously has
noted the potential objection to subjective components of
evaluation in selection procedures. See Bryant, 200 F.3d at
1100. Past success at lower levels of merit-based promotions
merely predicts, but does not establish, success at higher
levels of merit-based promotions. We cannot require the
City to increase its merit-based promotions on mere specu-
        11
lation.
  To survive the City’s summary judgment motion and
to prevail on their own motion, the officers were required to
specify an alternative, prove that the alternative was equally


11
  We note that, in Brown v. City of Chicago, 8 F. Supp. 2d 1095
(N.D. Ill. 1998), aff’d sub nom. Bryant v. City of Chicago, 200 F.3d
1092 (7th Cir. 2000), the district court found that a combined
process of assessment-based promotions and merit-based
promotions represented a less discriminatory alternative than
assessment-based promotions alone. Id. at 1113. In that case,
however, the finding was based on more than a prediction. The
merit-based promotion candidates had been identified but were
not promoted because of a state court injunction against the
City’s use of merit-based promotions. Id. at 1111. Both parties
agreed that implementing merit promotions represented a valid,
less discriminatory alternative, but the City argued that the state
court injunction prevented its implementation. Id. at 1112. The
district court found that the alternative was available despite the
state court injunction, id. at 1113, and that ruling was not
appealed, see Bryant, 200 F.3d at 1100.
No. 02-3743                                                 19

valid and prove that the alternative was less discriminatory.
The officers did not meet their burden. The district court
properly granted summary judgment to the City on the
claim of Subclass B.


C. Subclass A’s Claim: Merit Promotions Without the
   Qualifying Test Prerequisite
   The same burden-shifting analysis that applied to Sub-
class B’s claim applies to Subclass A’s claim. See 42 U.S.C. §
2000e-2(k)(1)(A); Albemarle, 422 U.S. at 425; Bryant, 200 F.3d
at 1094. Subclass A officers challenged the written qualify-
ing test prerequisite to merit promotions. The City conceded
that the qualifying test had an adverse impact on African-
Americans, and the officers agreed that the qualifying test
was job related and consistent with business necessity.
Subclass A officers then proposed that merit promotions be
made without requiring a passing score on the written
qualifying test. As with the claim of Subclass B, the parties
disagree only as to whether the officers’ proposal represents
a substantially equally valid, less discriminatory alternative.
  To survive summary judgment, the officers must demon-
strate a genuine issue of material fact as to whether merit
promotions with no qualifying score prerequisite would be
substantially equally valid as merit promotions with the
qualifying score prerequisite. They must also demonstrate
a genuine issue of fact as to whether such promotions
would be less discriminatory. The officers lack evidence to
establish either proposition.
  In the burden-shifting analysis, the officers bear the
burdens of production and persuasion as to whether the
alternative selection device they propose is a valid, less
discriminatory alternative. See 42 U.S.C. § 2000e(m); id.
20                                                  No. 02-3743

§ 2000e-2(k)(1)(A)(ii). Because the officers bear the burden
of proof, the City is not required in its motion for summary
judgment to produce evidence showing the absence of a
genuine issue of material fact on these elements. See Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23, 325 (1986). Rather,
the City can point to the officers’ lack of admissible evi-
dence. See id. at 325. Thus, the City argues that the officers
lack any evidence to establish that merit procedures alone
would be substantially equally valid as merit promotions
dependent upon a qualifying score. The written qualifying
test was designed to measure the skills, knowledge and
abilities required by a minimally qualified sergeant on the
first day of the job; the merit promotions were validated
with the qualifying test prerequisite. The City argues
therefore that there is no evidence that merit promotions
alone would be equally valid: Without an initial assessment
of job knowledge, skills and abilities, an officer who lacked
the minimum level of competence might be promoted.
  The officers argue that nominators were trained to assess
meritorious traits and could also have been trained to assess
job knowledge, skills and abilities. The officers have pro-
vided no evidence, however, to demonstrate that the
nominators are capable of assessing these prerequisites.
In Gillespie v. State of Wisconsin, 771 F.2d 1035 (7th Cir. 1985),
this court noted that the plaintiff’s “bare assertion” about
the possibility of using a short answer test, a multiple choice
test, or another commercially developed test “fails to satisfy
the plaintiff’s burden of demonstrating that other tests or
selection devices without a similar undesirable racial effect
would also serve the employer’s legitimate interests.” Id. at
1045. The officers have provided nothing more here than
did the plaintiff in Gillespie. The officers’ “bare assertion”
about the ability of raters to assess job knowledge does not
create a genuine issue of material fact as to the comparable
No. 02-3743                                                 21

validity of merit procedures alone. See also Allen v. Entergy
Corp., 181 F.3d 902, 906 (8th Cir. 1999) (holding that the
district court properly entered summary judgment against
the plaintiffs when they made no showing that their alterna-
tive “would be an equally accurate predictor of success” in
the subject job position).
  As discussed in relation to Subclass B’s claim, even if
the officers had presented evidence of validity, they still
have presented insufficient evidence that their alternative
would be less discriminatory. There is no way of knowing
who would be promoted were the merit-based promotions
made without regard to passage of the written qualifying
test. Cf. Brown v. City of Chicago, 8 F. Supp. 2d 1095, 1113
(N.D. Ill. 1998), aff’d sub nom. Bryant v. City of Chicago, 200
F.3d 1092 (7th Cir. 2000) (finding percentage of merit-
based promotions less discriminatory when merit-selection
results were known). Nor is there evidence that merit se-
lection is inherently less likely to cause a disparate impact.
Cf. Bryant, 200 F.3d at 1100 (noting potentially objectionable
subjective component). The non-discriminatory history of
past merit selection in the CPD is not sufficient evidence to
withstand the City’s motion for summary judgment.
  Because the officers have not demonstrated genuine issues
of material fact as to the validity and less discriminatory
nature of their proposed alternative, the district court
properly granted summary judgment to the City on the
claim of Subclass A.


                         Conclusion
  The Subclass B officers did not prove that increased merit
promotions represented an equally valid and less discrimi-
natory alternative, and the district court properly denied
summary judgment to the officers and properly granted
22                                               No. 02-3743

summary judgment to the City on their claim. The Subclass
A officers did not establish a genuine issue of material fact
as to whether merit procedures alone represented an
equally valid and less discriminatory alternative, and the
district court properly granted summary judgment to the
City on their claim. For these reasons, the judgment of the
district court is affirmed.
                                                   AFFIRMED

A true Copy:
       Teste:

                          _____________________________
                           Clerk of the United States Court of
                             Appeals for the Seventh Circuit




                    USCA-02-C-0072—12-9-03
