Livingston v. City of Chicago

1

JENNIFER LIVINGSTON, et al. Plaintiffs, v. CITY OF CHICAGO, a municipal corporation Defendant.

No. 16C10156

United States District Court, N.D. Illinois, Eastern Division

January 22, 2024

OPINION AND ORDER

SARA L. ELLIS, United States District Judge

Plaintiffs Jennifer Livingston, Tavi Burroughs, Kenia Chavez, Christina Velasco, Katharine Lazzara, Jessica Maples, Shannon Markey Donna Griffin, Jamie Snevely, Lisette Venegas, and Mary Youngren sued Defendant City of Chicago for gender discrimination for using allegedly sexually discriminatory physical exams at the Chicago Fire Department (“CFD”) Paramedic Academy to terminate Plaintiffs. Plaintiffs claim that, in doing so, the City violated Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and the Illinois Civil Rights Act (“ICRA”), 740 Ill. Comp. Stat. 23/5. Plaintiffs also assert violations of their equal protection rights under 42 U.S.C. § 1983 and Monell v. Dep't of Soc Servs. of the City of N.Y., 436 U.S. 658 (1978). The City moves for summary judgment as to all Plaintiffs on their disparate treatment, Monell, and ICRA claims and only as to Burroughs, Velasco, and Markey on their disparate impact claim. The City also moves for partial summary judgment against Youngren for failing to mitigate her damages.

Because Plaintiffs have provided sufficient facts to create a material dispute of fact as to their disparate treatment and disparate impact claims, the Court denies the City's motion for summary judgment. Similarly, because Plaintiffs present evidence that Commissioner Santiago was a policymaker in relation to Plaintiffs' termination the Court denies the City's motion for summary judgment as to Plaintiffs' Monell claim. Finally, the Cout denies the City's partial motion for summary judgment as to Youngren because the City's offer to process did not constitute an unconditional job offer that cut off Youngren's backpay.

BACKGROUND^[1]

I. The Academy

The application process for becoming a fire paramedic with CFD includes several steps. To be eligible to apply, an individual must obtain a valid Illinois EMT-P license, CPR certification, and Advanced Cardiac Life Support certification. Once an individual has submitted her application, she must wait to be called for processing. Processing requires an applicant to meet all outstanding continuing education requirements for Illinois paramedics, complete a prehire physical abilities test, and complete CFD's medical clearance process. Once an applicant has been processed, she becomes eligible to enroll in the Candidate Fire Paramedic Training Program (the “Academy”) as a candidate paramedic. Candidate paramedics serve a nine-month probationary period that begins on their first day of the Academy.

The Academy requires candidate paramedics to pursue a full-time course of study that includes both academic and physical components. Academically, a candidate paramedic takes courses about certain medical devices and information, the EMS regional procedures, locations of major Chicago streets, hospitals, and landmarks, and CFD's written operational orders. CFD evaluates a candidate paramedic's knowledge through written tests, quizzes, final exams, practical skills assessments, and other graded activity. Candidate paramedics receive updates on their academic progress through midterm and final progress reports. CFD manually enters grades for candidate paramedics in a computer program called Gradebook, which tracks and stores candidate paramedics' grades. Failure or inability to maintain an overall grade average of 80% or better may result in the candidate paramedic's termination from the Academy. Between 2014 and 2015, forty-eight of the fifty-one female candidate paramedics who completed the academic component of the Academy received total grade averages of 80% or above.

Candidate paramedics must also pass the Academy's physical requirements, which in 2014 and 2015 included the Step Test and the Lifting Sequence. Neither test had been validated when CFD implemented it for the Academy.^[2]The Step Test required candidate paramedics to “(1) hold a 25-lb dumbbell in each hand during examination, without placing them on the ground or resting them on any surface; (2) step up onto, and down from, a platform or step eighteen inches in height, continuously for not less than two minutes; (3) at 112 beats per minute; and (4) without missing cadence for two consecutive beats.” Doc. 604-1 ¶ 42. Between 2010 and 2013, the box height for the Step Test was nine inches. Following a proposal from Darryl Johnson, an Academy instructor, CFD increased the box height to eighteen inches and incorporated that adjustment in its 2014 Candidate Manual.^[3]Johnson testified that the Step Test had “nothing to do with [a candidate paramedic's] job performance,” but also was not designed to “flunk anyone” or to terminate a candidate paramedic's employment. Id. ¶ 150. Johnson instead testified that he included the Step Test as part of the Academy training for “fitness training for self improvement.” Id. Female candidate paramedics failed the Step Test at higher rates than their male counterparts.

The Lifting Sequence consisted of three parts, including a stair chair carry, which candidates had to complete in eight minutes. The stair chair carry required candidates to go up and down flights of stairs carrying a chair that held a 250-pound mannequin. As the test had been implemented from 2010 to 2013, if the chair touched any surface, the candidate paramedic failed the test. However, in 2014, CFD changed the Lifting Sequence to allow for the chair to touch the landing surface without resulting in the candidate paramedic's failure. Women failed the Lifting Sequence at higher rates than men.

The 2008-2015 versions of the CFD Paramedic Candidate Manuals stated that CFD may terminate candidates' employment if they failed to meet either the academic or physical requirements listed in the manual, meaning that CFD retained discretion whether to terminate or not terminate the candidate. Commissioner Jose Santiago approved a CFD candidate's termination. Before 2014, the City had not fired any candidate paramedic for failing the Step Test or Lifting Sequence. Between 2014 and 2015, the City only terminated women for the stated reason of not passing the Step Test or Lifting Sequence.

In 2012, the City hired Dr. Nancy Tippins, a testing expert, to evaluate a new pre-hire test for paramedics, the Paramedic Physical Abilities Test (“PPAT”). As part of her role, Dr. Tippins conducted an extensive job analysis of the CFD paramedic position. During her engagement, Dr. Tippins wrote a letter to the City on October 4, 2014, which discussed additional research she needed to complete to make appropriate changes to the paramedic hiring physical test (the “PAT”). In that same letter, Dr. Tippins raised concerns regarding the training standards used by CFD for paramedics, specifically whether the “training standards” had “been validated and are aligned with job requirements.” Id. ¶ 142. She also expressed her belief that “some of the training requirements more closely related to physical fitness . . . than the physical ability to perform the Paramedic job.” Id. In 2015, CFD hired Dr. Tippins to examine the broader relationship between the physical ability standards used for pre-employment selection, the standards used to pass the Academy physical evaluation procedures, and the standards used in the functional capacity evaluation to determine return-to-work status for paramedics who had been injured or had other health concerns during the course of their employment. At no point during her employment with CFD did Dr. Tippins validate the Step Test or Lifting Sequence as they were used at the Academy during 2014 and 2015. Dr. Tippins testified that she would not recommend using either the Step Test or the Lifting Sequence in the Academy. Id. ¶ 176.

Former CFD Deputy Commissioner of Administrative Services Anthony Vasquez, the fire chief overseeing CFD's Personnel Division, also had concerns relating to the Step Test and Lifting Sequence. He testified that he believed the Step Test might be “extreme” and that an eighteen-inch box was too high. Id. ¶ 144. He testified that he thought three flights of stairs may be excessive for the Lifting Sequence. Id. He expressed concern that both tests had been “implemented internally without science.” Id. Commissioner Vasquez testified that he conveyed his concerns about the tests to Commissioner Jose Santiago before any candidate was fired for failing the tests. Id. Commissioner Vasquez also shared his concerns about the validation of the Step Test and Lifting Sequence with Adrienne Bryant, the CFD Deputy Commissioner of Human Resources and one of the individuals involved with the validation of physical tests for CFD. Id. ¶ 159.

After 2015, the City stopped using the Step Test. While the City still used the Lifting Sequence after 2015, it did not allow failure of the Lifting Sequence to serve as a basis for terminating a candidate paramedic. CFD also reduced the weight of the mannequin used in the Lifting Sequence to 200 pounds.

II. The Alphabet Classes

Plaintiffs all enrolled in the Academy as candidate paramedics between 2014 and 2015. The Academy enrolled six classes of candidate paramedics between 2014 and 2015, which are collectively referred to the “Alphabet Classes.” The Alpha class started on August 1, 2014 and included Livingston Snevely, and Velasco. The Bravo class started on August 18, 2014 and included Lazzara and Burroughs. The Charlie class started on September 16, 2014. The Delta class started on December 16, 2014. The Echo class started on April 1, 2015 and included Markey...