The opinion of the court was delivered by: Bua, District Judge.
Plaintiffs, the Afro-American Police League (AAPL), an
organization made up primarily of black police officers of the
Chicago Police Department, and three black members of the
Department who are officials of AAPL, filed the instant
lawsuit against the Fraternal Order of Police (FOP), the
collective bargaining representative for all Chicago police
officers under the rank of sergeant, John M. Dineen, the
President of FOP, and the City of Chicago, alleging various
civil rights and constitutional violations. The defendants
have moved to dismiss the claim under Fed.R. Civil P. 12(b)
and have filed a counterclaim and third-party complaint
alleging constitutional violations on behalf of the plaintiffs
and various third-party defendants. The plaintiffs and the
third-party defendants have moved to dismiss the counterclaim
and third-party complaint.*fn1
The plaintiff's complaint is rather lengthy and somewhat
confusing. As the memoranda filed with the Court reflect, it
is difficult to discern exactly what it is that plaintiffs
allege constitutes illegal conduct. Nevertheless, the Court
has, as it must, construed the complaint in the light most
favorable to the nonmoving party. Notwithstanding such
construal, for the reasons stated herein, the plaintiffs'
complaint is hereby dismissed in its entirety. Likewise, the
counterclaim is also dismissed.
In Count I of its complaint, the AAPL asserts that the
agreement between the City and the FOP is racially
discriminatory and contrary to the order of the Court in
United States v. City of Chicago, 411 F. Supp. 218 (N.D.Ill.
1976), aff'd in pertinent part, 549 F.2d 415 (7th Cir. 1977).
The agreement at Section 10.2 states:
The Employer shall not discriminate against
officers, and employment related decisions will
be based on qualifications and predicted
performance in a given position without regard to
race, color, sex, religion, or national origin of
the officer . . .
The original decree of the Court in United States v. City of
Chicago required the promotions to sergeant to consist of 40
percent black and Spanish-surnamed males. This quota system was
recently modified so that now only 25 percent of the promotions
must involve black and Hispanic officers. See United States v.
City of Chicago, 663 F.2d 1354, 1362 (7th Cir. 1981).
As the Court stated in its oral ruling of July 17, 1981, no
conflict between the agreement and United States v. City of
Chicago is found. As the Court then stated,
"The . . . agreement specifically prohibits the
City from discriminating against any officer on
the basis of race, and the provision of such
language in the contract does not, in this
Court's opinion, affect or evidence any intent to
affect the City's duty to comply with the
injunction entered by Judge Prentice
Marshall . . . in the case of United States v. City
of Chicago. The Court believes and finds that the
contract language evidences no intent on the part
of the City to violate any duty it has to take
affirmative action under the terms of that
injunction of the Court."
The complaint fails to assert facts which indicate that
compliance with the agreement will contravene the U.S. v. City
of Chicago decree. While the agreement seeks to proscribe
future discrimination and to set a general policy to be
followed by the Department, the decree in U.S. v. City of
Chicago is limited to the promotional scheme and merely seeks
to remedy past wrongdoing. The goal sought by all is racial
neutrality and the disappearance of bias, prejudice, and
discrimination. Were the Court to strike the neutrality clause
of the agreement, this goal could not be served. The
allegations which assert that the racial neutrality clause
violates the Court's decree in U.S. v. City of Chicago are
Under Title VII, a bona fide seniority system which is
neutral on its face is protected under Section 703(h),
42 U.S.C. § 2000e-2, notwithstanding a disproportionate impact on
minorities, regardless of whether the seniority system in
question was adopted before or after the enactment of Title
VII. American Tobacco v. Patterson, 456 U.S. 63, 102 S.Ct.
1534, 71 L.Ed.2d 748 (1982).
To state a claim under Title VII, some facts must be alleged
which reflect a scheme of intentional discrimination. To be
sufficient, such an assertion must be more than a conclusory
allegation. In the instant case, plaintiffs' conclusion that
intentional discrimination was present in the implementation
of the seniority system is apparently based only upon the mere
alleged existence of such incidental effects. No other
substantive supporting facts are alleged. Such a bare
conclusory allegation, without more, cannot survive a motion
to dismiss. Therefore, the allegations relating to a violation
of Title VII, insofar as they concern the seniority system,
are hereby dismissed.
Similarly, the complaint fails to state a cause of action
under 42 U.S.C. § 1981 and 1983. Under these sections, too,
purposeful and intentional discrimination must be alleged.
Facts indicating mere incidental discrimination are ineffective
to state a claim under these statutes. Mescall v. Burrus,
603 F.2d 1266 (7th Cir. 1979). The complaint before the Court is
devoid of well pleaded facts giving rise to an indication that
promulgation of the seniority system was the result of
intentional discrimination. Therefore, with regard to the
Section 1981 and 1983 claims, the complaint fails to state a
claim and is hereby dismissed. Count I is thus hereby dismissed
in its entirety.