Central City makes a promotion--Part A.

Palmer, Steven C. ; Weyant, Lee ; McNary, George W. 等

CASE DESCRIPTION

The primary subject matter of this case concerns the alleged discriminatory promotion practices within a governmental agency. Secondary issues examined include the development and application of affirmative action plans affecting several protected classes. The case has a difficulty level of four, appropriate for senior level. The case is designed to be taught in three class hours and is expected to require three hours of outside preparation by students.

CASE SYNOPSIS

Are Affirmative Action Plans meaningful guidelines to employment decisions? Or, are these plans merely an exercise in satisfying legislative directives? The Central City Police Department faces these questions concerning their recent promotion list to sergeant. Specifically, what is the department's justification for not promoting the individual with the second highest score on the promotion test? How can an individual with excellent performance evaluations and a clean discipline record not be promoted? Could it be the individual is a woman?

This case explores the integration of minorities into a predominately white male work environment. For example, the organization as a whole (i.e., city government) has developed affirmative action plans for over a decade. Only in the last several years has the branch level (i.e., police department) developed separate goals addressing their specific operation. Branch managerial decisions over the years did not eliminate discriminatory practices. In fact, branch management faced separate lawsuits from African American and then Hispanic employees over employment discrimination issues based on race. Now, branch management faces the integration of a new protected class within the workforce. Will they follow their previous managerial behavior?

[NOTE: This case is a fictionalized version of a real-life situation. Names and other potentially identifying information have been changed to protect identities. The applicable fact situation is true to the real case.]

INTRODUCTION

Mary Jones joined the Central City Police Department almost seven years ago. After successfully completing the training academy, she was assigned to the Field Bureau. The Field Bureau is comprised of the uniformed officers in cruisers patrolling the city. In the past six-plus years, in addition to the Field Bureau, she has also been a car accident investigator (1 year) and in the public affair unit (1 year). Although Off. Jones is currently assigned to the Field Bureau on the day shift in the 1st Precinct; she is on maternity leave having just given birth to her first child.

Jones is a married, white female in her early-thirties. She graduated summa cum laude from State University nine years ago with a bachelor degree in Criminal Justice. Eight years ago she was initially hired by Central City as a jailor. She applied to be a police officer with the city about a year later and was hired. Eighteen months ago Jones married a college professor and lives in Central City with her husband and newborn son.

CITY BACKGROUND

Central City has approximately 500,000 people. Women make up almost 55% of the adult population of Central City. Almost 84% of the population is Caucasian, 13% Black/African American, 1% Asian/Pacific Islander, 1/2% Native American and the remaining 1 1/2% identified in another classification. People of Hispanic origin comprise just over 3% of the population, with half of them identifying their race as Caucasian.

The city government may be described as a strong mayor form of government. The mayor is directly elected by the voters for a term of four years. It is a full-time position. The mayor selects his/her cabinet, except for the Director of Legal Affairs, Police Chief and Fire Chief. These three cabinet positions are covered by civil service protection; therefore, incumbents remain in their positions despite changes in mayor. All other cabinet members serve at the pleasure of the mayor. The legislative body for the city, the city council, has nine members elected by the voters for four-year terms.

The Central City Police Department, like most other police departments, uses a paramilitary structure utilizing a chain of command. The department is headed by the chief of police. Collectively officers at the rank of sergeant or above are referred to as command officers; with officers with the rank of captain or above called senior command officers. The current breakdown by rank are:

The city only hires from outside the department at the ranks of police officer and chief. All promotions except to chief are closed, meaning that only current sworn officers on the Central City Police Department are eligible. The chief may be done in an open (outsiders and insiders) or closed (insiders only) process at the discretion of the mayor.

Central City was divided into six precincts for the purposes of the police department's organization. Each precinct has one captain. Then there is a lieutenant assigned to the precinct on each shift (three total lieutenants in each precinct). Within each precinct there are three crews per shift. Each crew is lead by a sergeant and has five to ten officers. Two of the three crews per shift will work on any particular day. (See Appendix 1)

All of the sworn officers from police officer to captain are represented by the police union. The union contract provides that twice a year officers may bid (in order of preference) what shift they want to work (days, evenings, midnights). Officers are assigned to the shift by seniority in rank. Once their shift has been determined, the officers in the Field Bureau then can make requests as to which precinct and sergeant they want to work for. Generally these requests are honored but the contract does not require that Field Bureau officers be assigned to precinct and sergeant per their preference.

A little more than ten years ago, about a decade after Title VII became effective against municipal governments, the city changed its police ranks. Prior to then there were two entry level ranks, policeman and policewoman. Policewomen were limited in the duties that they could perform. Policewomen were not allowed to be assigned to the Field Bureau. The policy was not changed until a female applicant threatened a lawsuit if she was not hired at the same rank and with the same duties as males being hired. The first women officer was promoted to sergeant six years ago. The first female lieutenant has been at that rank for less than a year. There has never been a female to hold, or even qualified to apply for, a rank higher than lieutenant.

AFFIRMATIVE ACTION

As a recipient of significant federal funds, the city has had an affirmative action plan in place for at least eleven years. In that time period the city has approved three plans and a fourth is under consideration. The plans covered all of the departments within city government. In regard to the goals contained in the plans, only in the current and proposed plans has the police department had separate goals compared to other city departments. The city does not have a good record in voluntarily meeting its police department goals for African-Americans, Hispanics or women. In the affirmative action plan created eleven years ago, the city admitted to discriminating against women in police department employment practices.

Over the past eleven years the city has never been closer than 60% of its goal concerning female police officers at the entry-level rank. Currently the city has achieved less than 50% of its goal. There are 60 female police officers on the department at this time. The goal is 125 females at the entry-level rank. In regard to minority (Black and Hispanic) entry-level police officers the city has exceeded its goal for almost eight years.

While the affirmative action plan in place eleven years ago was in effect, 3.3% of the male applicants were hired and 2.4% of the female applicants were hired. During that time 29% of male applicants passed all phases of the testing process, while 16% of the female applicants passed all phases. During the time period covering the next affirmative action plan the pass rate of men was 17.4% and the success rate of female applicants was 12.5%. Regarding the applicants hired, 7% of the male and 6.5% of the female applicants became police officers. Under the current affirmative action plan 3.4% of the male applicants were hired and 0.7% of the female applicants were hired. The pass rate for male applicants was 74.5% and the pass rate for female applicants was 47.8%. Only one of twelve recruit classes over the past eleven years had at least 20% female recruits. Five of those recruit classes had less than 10% new women police officers. The remaining six classes were comprised of 10-20% female recruits. For the past eight years the goal for entry-level female officers has been over 20%.

Until last year, the goal for women at the rank of sergeant was 22.7% or higher. Last year the city redefined its goals and set the goal for female sergeants at 5.3%. The city made the change because only 5.3% of the officers eligible to test for sergeant were female. The goal for lieutenant was dropped from 20.1% to 2.7% for the same reason. The city dropped all goals for women at the ranks of captain, deputy chief and chief because no women were eligible at the time the goal was set to test for these ranks. The impact of changing the method of determining the goals for minority officers was that the goal for sergeants went from 13.8% to 13.5% and the goal for lieutenant went from 14% to 13%. The changed halved the goal for minorities in the upper ranks.

Ten years ago, a group representing the African American officers sued the city for employment discrimination based on race. The United States Justice Department also filed a lawsuit versus the city for employment discrimination against black officers. Before trial the parties entered into a settlement that was incorporated into a consent decree (court order). Among the settlement terms, the city agreed to set 9.3% as the long-term goal for black officers at each rank.

The Hispanic officers sued the city last year and settled out of court in a manner similar to the Black police officers' group. The long-term goal set in this consent decree was 3.2% at each rank.

PROMOTION PROCESS

Because all police officers, no matter rank, are covered by civil service, the city has established a merit system for selection. To be considered for promotion to sergeant, a person must have been an officer on the Central City Police Department for at least four years at the time of the application deadline. As with other eligibility lists, once established the sergeant eligibility list is valid for two years. The selection process for promotion to sergeant primarily involves a two-step process in order to establish the eligibility list. When a vacancy at the rank of sergeant occurs, then further steps are taken to fill the vacancy, including an interview with the chief. The step-by-step process is described in Appendix 2.

Central City's Human Resource Department is responsible for the testing process and establishing the eligibility lists. The city uses a modified rule of three, which means that for one opening the top three names on the eligibility list will be referred for consideration. If there are more than one opening in a rank, then the number of names referred will be double the number of vacancies to be filled. In the past the Human Resource Department has modified this process in a couple of different ways to take into account the affirmative action plan. They have either dropped the last name on the list and included the top name of the next highest scoring applicant of the protected class in which there is an underutilization or they have simply added one or two names to the list for underutilization purposes. The chief may, under law, promote any person whose name appears on the referral list.

CURRENT SITUATION

The city has just recently established a new sergeant eligibility list. For the purposes of this case, the following officer's placement on the list is relevant:

Right after the list came out, Jones was due to give birth. A couple of days before she started maternity leave, Jones met with Chief George Cline. She told Cline that she suspected that there would be a couple of promotions made to sergeant during her maternity leave, and she wanted to make sure being on maternity leave would not impact her being promoted. Chief Cline assured her that she would not be passed over for promotion.

About three weeks after giving birth, Jones found out that the City intended to promote two people to the rank of sergeant. Further, she was informed that her name had not even been referred for consideration. Instead of referring the top four names as required by city law, the Human Resources Department sent the names of the only four Black officers on the eligibility list. In addition to Williams (#1), these officers were Robert White (#19), Fred Taylor (# 36) and Johnnie Brown (# 48). All four of these Black male officers were in the same recruit class as Jones. This will be the first time in Central City history that an affirmative action promotion would be made before the top two people on the eligibility list were promoted.

It has been two years since a woman has been promoted to sergeant. During that two- year period, there have been thirteen men promoted to sergeant. Until the latest affirmative action plan was put into place a few months ago, the city was five female officers underutilized at the rank of sergeant. Under the current plan, with the new methodology for determination of the goal, the department is not underutilized.

JONES VISITS ATTORNEY

After learning of the City's intent to promote two officers without even considering her for promotion, Jones went to see a lawyer. She explained to the attorney that she finished with the second highest score on the promotion test and that she had not received any special treatment (affirmative action considerations) to achieve this ranking.

Jones told her attorney, Perry Matlock, that she knew of no reason that she would not be promotable. She had never been disciplined. Her performance evaluations have always been excellent. She had been a team player and worked hard to improve the public image of the police department.

KUTZTOWN UNIVERSITY OF PENNSYLVANIA

When Chief Cline received the referral list for the promotion he noticed that Off. Jones' name was not on the list. Cline called Ben Mason, the deputy city attorney responsible for the police department, to advise Mason of his conversation with Jones.

After the telephone call Mason decided that the legal department needed to do some preliminary work on this matter. So Mason made arrangements to interview the primary people involved with the promotion decision.

Archie Hill, the Employment Director, was the first to talk with Mason. Among his responsibilities Hill oversees the creation and administration of all employment testing and development of the eligibility list. The following is the relevant part of their conversation.

MASON: Archie, I appreciate you meeting me. I need to discover what is happening regarding Jones' possible claim that she has been discriminated against. How do you determine who on the eligibility list is qualified for promotion?

HILL: The department believes that all candidates whose names appear on the eligibility list are qualified for the job.

MASON: Does ranking on the list convey who is most qualified?

HILL: Not really, as there are other factors. Clearly number 1 is better qualified than number 60. But is number 3 less qualified than number 1, I can't say so.

MASON: Were you actively involved in the current promotion process for sergeant?

HILL: I met with Jerry Franklin, Assistant Human Resources Director, to discuss the proper procedure for determining the names that would be referred to the chief for this promotion. Jerry had completed the underutilization analysis that indicated there was an underutilization of two blacks at the rank of sergeant. We decided to recommend that only the names of black candidates should be referred for these two openings. That way we would be in full compliance with the court decree entered in the Black Police Officers Association case against the city.

MASON: Before this promotion, have we ever referred only the names of members of a protected class?

HILL: This was the first sergeant position that only the names of black candidates were referred. Prior to this particular promotion if there was an underutilization of black sergeants we would use a different process. For example, if there was one opening, the top two or three candidates plus the top one or two black applicants would be referred for consideration. So the chief might then select from among four to six candidates under the old system. We would advise the chief of the underutilization, but he was under no obligation to promote a black candidate.

However, we did use a similar process for a recent lieutenant promotion. In that case the lieutenant's list was about to expire. There were only two black officers on the eligibility list. We made the referral shortly after the black officers had unsuccessfully brought the city back to court claiming that we were not making progress toward the goals in the consent decree. So, instead of referring three names, we only referred the names of the two black sergeants for consideration.

MASON: Didn't we have a referral of only Hispanic officers for promotion?

HILL: Yes, approximately six months ago for a sergeant promotion. That promotion was made because the Hispanic consent decree specifically required that at least one Hispanic officer be promoted to sergeant within 180 days. The 180 days was coming to a close and no Hispanic officers had been promoted.

MASON: What is the Human Resource Department's policy regarding referrals?

HILL: There is no official policy regarding how the court consent degrees and affirmative action plan are incorporated into the employment decision process. Prior Human Resource Directors did not agree with the "black only," or "Hispanic only" method of referral. However the current acting director has no objection to such referrals.

MASON: Does the chief know the order on the eligibility list when the names are referred?

HILL: When names are referred to the chief for consideration, they are listed in the order of placement on the eligibility list. So the top name on the list of referrals is the name of the referred person who is highest on the eligibility list. However, there is no indication as to the exact placement on the eligibility list.

MASON: When is the last time a woman was promoted to sergeant under the city's affirmative action plan?

HILL: I can't remember any incidents where a women officer has been promoted to sergeant under the affirmative action program. There have been cases that black and Hispanic officers have been promoted to sergeant under affirmative action policies.

MASON: How many people of color and females were on this eligibility list?

HILL: Four out of sixty-nine names on the eligibility list were black males. If I remember correctly they ranked 1, 19, 36 and 48. There were seven were white female. Jones ranked highest at number 2. The others' approximate rankings were 5, 10, 45, 46, 56 and 62. I believe there were two Hispanic males, 26 and 60. All but two of the black candidates, Williams and White, and two of the female candidates, Jones and Kuebs, were on the list because of affirmative action. All but those four people scored lower than 60th on the multiple choice test after seniority and education points were added. But we invited them to participate in the assessment center by virtue of the affirmative action program.

Next Mason talked with Jerry Franklin, Assistant Human Resources Director. Franklin is in charge of development and implementation of the city's affirmative action program and compliance with court decrees regarding hiring and promotions. Their conversation went as follows:

MASON: Historically, how were the affirmative action goals for women at the rank of sergeant determined?

FRANKLIN: In the original affirmative action program developed eleven years ago, the goals were set based collectively on all city departments. Police sergeants were lumped into the category of Technicians. For Technicians throughout the city the goal for women was 22.7%.

MASON: Has the city changed the method of determining affirmative action goals for sergeants?

FRANKLIN: Three months ago when the latest affirmative action plan was approved the city broke out the police department from the rest of the city departments in determining the goals. Sergeants were switched from technicians to professionals. Finally the method of determining the base for the goals changed. The new method narrowed the potential pools to only those females/minorities on the department at the rank of police officer with at least four years experience. The interim goals for blacks and Hispanics under the respective consent decrees were incorporated into the last affirmative action plan because those goals were higher than the goals determined by the new method being used by the city. There were no court decrees regarding women; so, the goal for women was simply based on the percentage of women with four or more years experience at the rank of police officer.

MASON: How do you prioritize court orders and the city's affirmative action plan?

FRANKLIN: It is the city's position that the court decrees are superior to city ordinances and the affirmative action plan. So as long as there is an underutilization of blacks or Hispanics, there will be no efforts made to hire or promote females even if there is a serious underutilization of women.

MASON: How are the terms of court orders and the affirmative action implemented?

FRANKLIN: There is no policy within the city as to how to apply consent decrees or affirmative action plans in the hiring decisions. At the time that the referral list in question was being prepared there were 120 sergeants authorized, nine of whom are black. The consent decree goal is 9.3% of sergeants should be black. That means that the city needed 11 black sergeants to be in full compliance with the goals of that consent order.

Chief Cline was the next official to meet with Mason. Cline has been chief for only seven months, but he has been on the Central City Police Department for twenty years. Chief Cline shared the following with Mr. Mason:

MASON: Chief, did you consider promoting Mary Jones to sergeant?

CLINE: No I did not. Her name was not referred to me and she was not interviewed for promotion.

MASON: What role do you see the chief's interview playing in determining the qualifications of candidates for promotion?

CLINE: The Human Resource Department's testing process is designed to determine if the applicants for promotion have the necessary knowledge, skills and abilities. The chief's interview is only 15-minutes or so. It is simply to get to know the person a little better to make sure that there is no glaring reason against promoting the person.

MASON: How is the police department doing toward meeting the goals of the affirmative action plan?

CLINE: Well, the most recent recruit class that just completed training a week ago has 22 new police officers. Only one of those recruits is female. Overall, out of the 740 current sworn officers, approximately 68 are female. Seven of those females are sergeants and one is a lieutenant. As far as blacks on the police department, there are 78 black sworn officers. Of those 17 hold command rank. I believe there are 12 black sergeants, 4 black lieutenants, and 1 black captain.

MASON: Are you familiar with Officer Mary Jones?

CLINE: Although Off. Jones was not interviewed for promotion, I am familiar with her. She has never worked directly under my command but I am familiar with her work. A couple of my captains for whom she worked directly have talked about her with me. I also am generally familiar with her work through observing the results of her actions..

MASON: Do know of any reason that you would not promote Off. Jones?

CLINE: I know of no reason to believe that Jones could not perform the duties of a sergeant. At this point I would promote her under the right circumstances.

MASON: Don't Williams and White have relatives in high positions within city government?

CLINE: Yes, Williams is the son of one of the mayor's top aides and White's sister is a member of city council. The fact they have relatives within city government did not impact the promotion decisions or who would be referred for consideration. I decided to promote these two individuals because they were the two highest listed people referred for promotion.

Isaac Williams, Sr., Off. Isaac William's father, briefly met with Mason. Williams, Sr. is the mayor's assistant responsible for public safety. He is also a captain on the police department; although he is currently on a leave of absence to serve the mayor. Mr. Williams admitted to Mason that in his opinion that women have been the target of discrimination within the police department. He is seeing improvement within the department over the past several years, but women still are not treated 100% the same as men. He also believed that black males were not treated the same as white males. Williams agreed that he has seen improvement in the treatment of black officers over the course of his career.

CONCLUSION

The day has come for the promotion of two police officers to sergeant. The promotion ceremony is scheduled for 3:00 p.m. in the police department's auditorium. In attendance will be most senior command officers, many co-workers of the people being promoted, the family and friends of those being promoted, the mayor and the local media. However, before the ceremony commences, Mary Jones and city officials have to make some important decisions.

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CENTRAL CITY

SERGEANT PROMOTION PROCESS

Appendix 2

Applications Submitted: Approximately every two years the Central City Human Resource Department accepts applications from current police officers who meet minimum qualification during a 30-day period of time. Job announcements are posted only a day or two before the application period begins

Applications Reviewed: The Human Resource Department reviews each application to determine if the applicant is a current sworn police officer with the Central City Police Department and has been so employed for at least the immediate four years prior to the application closing date.

Multiple Choice Test: The Human Resource Department administers a multiple choice test over state and city laws involving the police department and the department's standard operating procedures.

Creation of Preliminary List: The Human Resource Department creates a preliminary list by using the score on the multiple choice test plus up to 10 points for seniority and up to 10 points for education.

Initial cut off: Applicants are invited to participate in the second phase (usually top 60 scores plus additional applicants in protected classes if necessary for affirmative action purposes)

Assessment Center: The assessment center usually includes an in-basket exercise and two or three additional exercises that deal with employees or the public.

[The following description of an assessment center is a direct quote from McGrath Consulting Group, Inc. of Wonder Lake, Illinois. It does an excellent job of summarizing assessment centers (Source: http://www.mcgrathconsulting.com/assessmentcenter.asp):

An assessment center is a systematic and comprehensive testing process in which preselected candidates are tested in an environment that provides a high degree of reliability and insight into his/her supervisory, leadership, and/or management potential by testing skills and ability, rather than just knowledge. Assessment testing is appropriate for all supervisory ranks.

The candidates participate in a series of exercises tailored to represent the culture and environment of your organization and community. The assessment center process allows the assessors to observe the candidate's thought process, organizational skills, leadership ability, stress tolerance, analytical skills, influence, delegation ability, decisiveness, sensitivity and/or empathy, both verbal and non-verbal communication, ability to function as a team member, and his/her ethics.

The assessment center testing process has both individual and group tasks that are observed by a series of assessors, trained by McGrath Consulting in behavioral observation techniques. Each assessor will rank the candidates and then, as a group, discuss and agree upon a composite evaluation of each candidate.

The hiring authority is able to evaluate, before hiring and/or promotion, how an individual is likely to perform in the job via observation of the candidate's ability to handle job-simulation exercises.]

Eligibility List Established: The Human Resource Department establishes the eligibility list based on the assessment center score. The person with the highest score on the assessment center is number 1 on the list.

Notice of Vacancy: The police chief sends a notice of opening to the Human Resource Director.

Referral List Sent: The Human Resource Director refers a list of names to the chief for consideration. If there is one opening, then the top three names on the list are contained on the referral. If there is more than one vacancy to be filled, then the list of names referred will contain twice the number of names than there are vacancies to be filled. Generally, if there is an underutilization of a protected class, the name(s) of the top or two top members of that protected class will be added to the referral list.

Chief's Interview: Once the names have been referred, the police chief will interview each of the applicants whose name was on the referral list.

Chief's Recommendation: After interviewing the candidates, the police chief makes his/her recommend for promotion to the mayor. The chief does not have to take the candidates in order, nor does the chief have to give a reason for recommending someone other than the top name on the list.

Mayor Promotes: The mayor, upon receiving the chief's recommendation, makes the formal promotion decision. This is a rubber-stamp decision, as the mayor will almost always promote whoever the chief selects.

Steven C. Palmer, Eastern New Mexico University

Lee Weyant, Kutztown University of Pennsylvania

George W. McNary, Creighton University

Rank Number

Chief 1
Deputy Chief 7
Captain 18
Lieutenant 40
Sergeant 120
Police Officer 554
Total Sworn Officers 740

Rank Name Race Gender

 1 Isaac Williams black male
 2 Mary Jones white female
 3 Bill Wright white male
 4 Joel Peterson white male
 5 Samantha Miller white female
10 Mimi Kuebs white female
19 Robert White black male
36 Fred Taylor black male
48 Johnnie Brown black male