In the
United States Court of Appeals
For the Seventh Circuit

No. 00-3536

LISA PRICE,

Plaintiff-Appellant,

v.

CITY OF CHICAGO,

Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 C 7864--James F. Holderman, Judge.

ARGUED APRIL 12, 2001--DECIDED MAY 24, 2001



  Before EASTERBROOK, RIPPLE and WILLIAMS,
Circuit Judges.

  RIPPLE, Circuit Judge. Lisa Price brought
disparate impact discrimination and equal
protection claims against the City of
Chicago ("the City")./1 The City filed
a summary judgment motion. Ms. Price’s
response to that motion was untimely, and
the district court refused to accept
it./2 The court granted summary
judgment to the City, and Ms. Price now
appeals.

I

BACKGROUND

A.   Facts

  We shall limit our recitation of the
facts to those necessary to an
understanding of the issues presented in
this appeal.

  Ms. Price is a female, African-American,
Chicago police officer. The Chicago
Police Department ("CPD") determines who
it will promote by rank ordering its
officers based on their performance on
certain tests. Officers who receive the
same score on the tests are further
ranked based on seniority. However, ties
sometimes still persist. Officers who
receive the same score and also have the
same seniority therefore are ranked by
age; the older officer is promoted first.

  The City had decided to promote 156
officers to sergeant. On her qualifying
examinations, Ms. Price scored the same
as 38 other officers. Of those 38
officers, only 33 were eligible for
promotion at the same time as Ms. Price.
One other officer, Michael Ward, had the
same test score and seniority as she. The
position on the promotion list for which
Ward and Ms. Price were tied was the last
space available for promotion; the
department could promote only one of the
two and still stay within its pre-
determined quota. In accordance with its
age-based policy, it chose to promote
Ward rather than Ms. Price because Ward
was two years older. Although Ms. Price
was passed over for promotion during this
promotion cycle, she was promoted about
one year later.

B.   Proceedings in the District Court

  Ms. Price brought this action against
the City. She alleged that the CPD’s
policy of using an officer’s date of
birth as a "tie breaker" had a disparate
impact on African Americans. She also
alleged that the policy violated the
Equal Protection Clause because it had no
rational basis.

  The district court rejected both of
these contentions and granted summary
judgment in favor of the City. In the
court’s view, Ms. Price had not offered
any evidence that the City’s policy
disproportionately impacted African
Amercans. To the contrary, the City had
presented statistical evidence that the
policy did not have an adverse impact on
African Americans. Because Ms. Price did
not rebut this evidence, she could not
succeed on her disparate impact claim.

  The court also rejected Ms. Price’s
equal protection claim because the City
presented two rational bases for its
policy. First, the CPD often used date of
birth to break ties when officers were
allowed to choose or to request
assignments, and that criterion had been
incorporated into collective bargaining
agreements. Second, the policy helped
insulate the CPD from ADEA liability.
Because Ms. Price did not negate these
explanations for the policy, she failed
to prove that there was no rational basis
for them.

II

DISCUSSION

A.   The Disparate Impact Claim

  To succeed on her disparate impact
claim, Ms. Price must make out a prima
facie case by showing that the method of
promotion she challenges has an adverse
impact on minorities. If she makes this
showing, the City must then demonstrate
that its method is job-related and
consistent with business necessity. See
Bryant v. City of Chicago, 200 F.3d 1092,
1094 (7th Cir.), cert. denied, 121 S. Ct.
64 (2000). Ms. Price does not challenge
the City’s use of tests to identify those
officers eligible for promotion; instead,
she challenges only the City’s use of
date of birth as a tie breaker. Based on
a statistical analysis of how the City’s
use of date of birth affected the
minority officers who received the same
score as Ms. Price on the initial
eligibility tests, the district court
concluded that the use of date of birth
did not cause any adverse impact. This
finding is supported by the record.
Without demonstrating such an adverse
impact, Ms. Price cannot establish her
prima facie case./3

  Ms. Price addresses this fundamental
defect in her case by arguing that the
1991 Amendments to the Civil Rights Act,
Pub. L. 102-166, sec. 105(a), 105 Stat.
1071, 1074 (1991) (codified at 42 U.S.C.
sec. 2000e-2(k)) ("1991 Amendments"),
eliminated the requirement that a
plaintiff demonstrate that the challenged
practice has a disparate impact.
According to Ms. Price, a Title VII
plaintiff may now establish disparate
impact liability simply by showing that
an alternative employment practice with a
lesser adverse impact exists and that the
employer has refused to adopt it. See 42
U.S.C. sec. 2000e-2(k)(1)(A)(ii)./4 Ms.
Price points to an EEOC guideline, 29
C.F.R. sec. 1607.3(B), which provides:

Where two or more selection procedures
are available which serve the user’s
legitimate interest in efficient and
trustworthy workmanship, 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.

Ms. Price contends that, in this case,
the City should have promoted her in
addition to Ward because doing so (1)
would counteract the underrepresentation
of minorities on the promotions list
caused by the initial eligibility test,
and (2) would have a lesser adverse
impact on minorities than breaking the
tie through use of date of birth.

  Ms. Price’s contention that the 1991
Amendments eliminated the plaintiff’s
burden of establishing a prima facie case
is untenable. With respect to less
discriminatory alternatives available to
an employer, which is the statutory
provision Ms. Price seeks to rely on
here, the 1991 Amendments provide that a
plaintiff’s demonstration shall be in
accordance with the law as it existed
prior to the Supreme Court’s decision in
Wards Cove Packing Company v. Atonio, 490
U.S. 642 (1989). The controlling
principle was first set forth in
Albemarle Paper Company v. Moody, 422
U.S. 405, 425 (1975). In that case, the
Supreme Court made clear that an employer
has no duty to justify its use of a
particular employment practice unless the
plaintiff establishes that the practice
has a disparate impact. If the plaintiff
successfully establishes a prima facie
case of disparate impact and the employer
successfully demonstrates that the
practice is job-related, the plaintiff
then has the opportunity to convince the
fact-finder that the employer’s
explanation is, in effect, pretextual
because there are less discriminatory
alternatives available that the employer
refuses to adopt. See id.

  The framework established by Albemarle
places the issue of whether less
discriminatory alternatives exist at the
end of the disparate impact analysis;
certainly, there is no suggestion that a
plaintiff may vault over the initial
inquiries and rest her case entirely on
the existence of alternatives. Moreover,
Ms. Price has cited no case that supports
her interpretation of the statute, and
our research reveals none. To the
contrary, plaintiffs consistently have
been required to establish a prima facie
case, both before/5 the 1991 Amendments
and after./6 We, therefore, cannot
accept Ms. Price’s argument that she need
not establish an adverse impact in order
to impose disparate impact liability on
the City.

  The employment practice Ms. Price has
chosen to challenge in this lawsuit is
the City’s policy of using date of birth
to determine seniority for purposes of
promotion. As we said earlier, Ms. Price
has made no attempt to demonstrate,
through statistics or otherwise, that
this practice has a disparate impact on
minorities. The only disparate impact Ms.
Price attempts to establish is an alleged
underrepresentation of minorities on the
list of officers eligible for promotion
compiled from test scores. Any such
underrepresentation, if it exists, is the
result of a flaw in the initial test. If
Ms. Price believes the initial test has a
disparate racial impact, she ought to
have attacked the test directly. However,
she has disavowed expressly any such
attack in this case. The City cannot be
asked to adopt policies designed to
correct allegedly undesirable results
that have not been shown to exist.

  Ms. Price’s statutory argument therefore
does not excuse the fatal failure to
establish the most basic element of
aprima facie case. She simply has failed
to show that the City’s use of a birth
date as a tie breaker has any adverse
impact.

B.   The Equal Protection Claim

  The City has offered two explanations
for its use of date of birth as a tie
breaker. First, many officers are
familiar with this method of breaking
ties because it is used to determine
seniority in all ranks permitted to
select or bid on certain contract
benefits, such as furloughs, watches, or
units of assignment. Indeed, the City’s
practice of using date of birth to
determine seniority is memorialized in a
collective bargaining agreement between
the City and the Fraternal Order of
Police, the entity that represents
Chicago police officers. Second, the
policy helps the CPD protect itself
against age discrimination claims. Ms.
Price attacks the City’s first
explanation by claiming that using age as
a tie breaker is only a custom. She
challenges the City’s age-discrimination
rationale because neither she nor Ward is
old enough to fall within the ADEA’s
protections, and therefore there was no
threat of such liability in this
instance.

  The City’s arguments are, in our view,
persuasive. In making promotions by
counting down a rank-ordered list, the
CPD is likely often to find itself in a
situation where the cutoff must be drawn
between two equally senior officers with
the same test score. Breaking such ties
through neutral criterion, accepted by
the officers in the department, will not
be perceived as favoring one officer over
another. Date of birth is familiar to
many of the officers because it is used
and accepted as a method of determining
seniority for contract rights for which
there is a right to bid. By using date of
birth as a tie breaker, the CPD promotes
a uniform policy, accepted widely as fair
by the officers of the department, that
chooses between two equally qualified
officers based upon a neutral criterion.
The City’s methodology is eminently
rational. Moreover, although the
contestants in this particular case are
not protected by the ADEA, the City is
entitled to choose a single methodology
for all promotion situations in order to
ensure that all of its police officers
are treated in a uniform and therefore
even-handed manner.

Conclusion

  The district court correctly concluded
that Ms. Price failed to establish that
the City’s reliance on age to break ties
on its promotions list had a disparate
impact on minorities. Nor did she
establish a violation of the Equal
Protection Clause. Accordingly, the
district court’s judgment must be
affirmed.

AFFIRMED


FOOTNOTES

/1 Ms. Price also brought a state law claim over
which the district court declined to exercise
supplemental jurisdiction. That claim is not at
issue in this appeal.

/2 In her opening brief, Ms. Price initially chal-
lenged the district court’s refusal to accept her
response. However, this court’s recent opinion in
Scaife v. Racine County, 238 F.3d 906, 907 (7th
Cir. 2001), held that the de novo standard of
review for a grant of summary judgment prevents
a party from being prejudiced by a district
court’s refusal to consider her summary judgment
motion so long as the court addresses the motion
on its merits. Ms. Price acknowledges Scaife in
her reply brief. We agree that Scaife controls on
this issue; therefore, we need not address Ms.
Price’s abandoned argument that she was preju-
diced by the district court’s refusal to accept
her summary judgment motion.

/3 Ms. Price could not have contested the City’s
statistics in the district court because the
court did not allow her to file her response to
the City’s summary judgment motion. She says in
her appellate brief, however, that she does not
challenge the City’s use of test scores and she
does not dispute the City’s statistical analysis.
What she does do on appeal is provide some
statistics of her own to try to show that African
Americans were promoted less often than whites.
These statistics compare the number ofAfrican
Americans and whites who took the promotion
eligibility test, the number who passed, and the
number who were actually promoted. What Ms. Price
does not do is offer statistics relating to the
38 officers who were ranked the same as Ward and
herself. None of the calculations Ms. Price
offers suggests that date of birth affected the
races differently.

/4 42 U.S.C. sec. 2000e-2(k) provides, in relevant
part:

(k) Burden of proof in disparate impact cases

(1)(A) An unlawful employment practice based on
disparate impact is established under this sub-
chapter 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 demonstrate that the
challenged practice is job related for the posi-
tion in question and consistent with business
necessity; or

(ii) the complaining party makes the demonstra-
tion described in subparagraph (C) with respect
to an alternative 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".

/5 See, e.g., Watson v. Fort Worth Bank & Trust, 487
U.S. 977, 994-95 (1988); Connecticut v. Teal, 457
U.S. 440, 446 (1982); New York City Transit Auth.
v. Beazer, 440 U.S. 568, 584 (1979); Dothard v.
Rawlinson, 433 U.S. 321, 329 (1977).

/6 See, e.g., Bryant v. City of Chicago, 200 F.3d
1092, 1094 (7th Cir.), cert. denied, 121 S. Ct.
64 (2000); Council 31, Am. Fed’n of State, County
& Mun. Employees, AFL-CIO v. Doherty, 169 F.3d
1068, 1074 (7th Cir. 1999); Vitug v. Multistate
Tax Comm’n, 88 F.3d 506, 513 (7th Cir. 1996).
