United States District Court, Northern District of Illinois, E.D
March 31, 1982
JOHN WASHINGTON, PLAINTIFF,
CITY OF EVANSTON, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
John Washington ("Washington"), a City of Evanston patrol
officer, sues Evanston and several supervisory or investigatory
members of its Police Department (the "Department"), alleging
race discrimination in violation of (1) Title VII of the Civil
Rights Act of 1964 ("Title VII," 42 U.S.C. § 2000e-2000e-17)
and (2) 42 U.S.C. § 1981 ("Section 1981").*fn1 Defendants
have moved to dismiss. For the reasons stated in this
memorandum opinion and order defendants' motion is
Sufficiency of the Complaint
Defendants contend that Washington's Complaint (the
"Complaint") contains only conclusory statements and lacks the
necessary specificity to state a civil rights cause of action.
But the Complaint alleges the following specific acts (among
others) were the result of defendants' racial discrimination:
(1) Washington was disciplined for minor infractions in
situations where white employees would not have been.
(2) He has been denied the opportunity for outside schooling.
(3) He has been denied shift changes.
(4) He has been refused light duty assignment after a
(5) He has been the target of "false and defamatory
(6) He has been denied overtime work.
(7) He has been cited for rule violations and suspended in
retaliation for filing discrimination charges.
Those allegations give defendants ample notice of the nature of
Washington's claims. Washington is not required to plead
evidence supporting the allegations or demonstrating those acts
were racially motivated. Without question he has alleged enough
to permit the action to survive and enter the discovery phase.
It is true the Complaint contains some vague allegations.
Paragraph 15.A, for example, alleges discriminatory practices
maintaining policies and practices with respect, but not
limited to, wages, discipline, job assignments, transfers,
schooling and other terms and conditions of employment . . . .
Moreover Washington must recognize he has standing to challenge
only acts of discrimination that have affected him. For example
Paragraph 15 alleges discriminatory hiring. Because Washington
was hired he cannot directly challenge such policies.*fn3
Taken as a whole, however, the Complaint clearly withstands a
motion to dismiss. Defendants are free to engage in discovery
to obtain any needed particulars.
On two occasions Washington has been suspended from work for
disciplinary reasons. In each instance Washington requested and
received a hearing before the Evanston Civil Service Commission
(the "Commission") to review the suspensions. One suspension
was upheld in turn by the Commission, the Circuit Court of Cook
County and the Illinois Appellate Court, while the second was
upheld by the Commission and now awaits review in the Circuit
Complaint ¶¶ 15.B., 15.F., 16 and 17 appear to stem from the
same operative facts that led to the two cases Washington has
pursued in the Illinois courts. Defendants say those state
court proceedings bar any adjudication here under doctrines of
res judicata and collateral estoppel.
As to Washington's Title VII claim, res judicata principles
cannot apply. Most recently in Unger v. Consolidated Foods
Corp., 657 F.2d 909, 913-15 (7th Cir. 1981) our Court of
Appeals again held a plaintiff entitled to pursue any state
court proceeding involving employment discrimination charges
without affecting his right to a de novo determination of such
matters in federal court. While Unger and other cases
announcing that principle typically involve claims before the
Fair Employment Practices Commission, the fact that Washington
asserted his claim before a civil service commission is of no
significance. Whatever the nature of state-created proceedings,
they should not preclude a federal court Title VII claim. See
discussion in Alexander v. Gardner-Denver Co., 415 U.S. 36,
47-49, 94 S.Ct. 1011, 1019-20, 39 L.Ed.2d 147 (1974).
Washington's Section 1981 claim is a bit more troublesome. He
did not specifically argue in the state court proceedings that
the disciplinary actions were the result of racial
discrimination. Instead he contended the charges against him
were not true factually. While it is now settled that res
judicata and collateral estoppel can apply in Section 1983
actions, Allen v. McCurry, 449 U.S. 90, 96-105, 101 S.Ct.
411, 416420, 66 L.Ed.2d 308 (1980), there has been no
definitive statement in this Circuit on the issue whether
constitutional claims that could have been but were not raised
in state court proceedings are barred from federal civil rights
This Court need not however address that question. Complaint ¶
15.B. alleges that rule violations asserted against Washington
would not have exposed white employees to such severe
discipline in similar circumstances. That claim could not have
been presented to the Commission. Nor could that sort of claim
have been presented to the Illinois courts, because they are
limited by statute to reviewing the Commission's findings.
Ill.Rev.Stat. ch. 110, § 274. Thus Washington may maintain a
Section 1981 claim involving his disciplinary charges.*fn5
Internal Police Procedures
Defendants finally urge the Complaint should be dismissed
because it concerns only internal police procedures. They say
questions such as whether Washington was entitled to certain
duty assignments or time off are such internal matters. That
argument is absurd. Any internal police procedure that violates
Title VII or Section 1981 is the proper subject of litigation
in this Court.
Defendants' motion to dismiss is denied. Defendants are ordered
to answer the Complaint on or before April 12, 1982. This
action is set for a status hearing April 23, 1982 at 9 a.m.