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AFRO-AMERICAN, ETC. v. FRATERNAL ORDER OF POLICE

December 8, 1982

AFRO-AMERICAN POLICE LEAGUE, RENAULT ROBINSON, HOWARD SAFFOLD, AND JERRY CRAWLEY, PLAINTIFFS,
v.
FRATERNAL ORDER OF POLICE, CHICAGO LODGE NO. 7, JOHN M. DINEEN, AND CITY OF CHICAGO, DEFENDANTS. FRATERNAL ORDER OF POLICE, CHICAGO LODGE NO. 7, COUNTER-PLAINTIFFS, V. AFRO-AMERICAN POLICE LEAGUE, RENAULT ROBINSON, HOWARD SAFFOLD, AND JERRY CRAWLEY, COUNTER-DEFENDANTS. FRATERNAL ORDER OF POLICE, CHICAGO LODGE NO. 7, THIRD-PARTY PLAINTIFF, V. RAYMOND ARMSTRONG, WILLIAM C. BIGBY, OCIE BROWN, PHILLIP BRYANT, RONALD CRAWFORD, ROBERT P. ERVIN, BOOKER T. MOORE, JIMMY RIVERS, ALBERT ROWE, CHARLES SIAS, AND JAMES SMITH, THIRD-PARTY DEFENDANTS.



The opinion of the court was delivered by: Bua, District Judge.

  OPINION

Facts

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.

COUNT I

A.

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 therefore dismissed.*fn2

B.

The complaint also asserts that the agreement contains seniority provisions which "build discriminatory effects on the hiring discriminations of the 1970s." These seniority provisions, which on their face are racially neutral, merely require that officers be laid off and reinstated in accordance with their seniority. Furthermore, the agreement states that seniority is a factor to be considered in the promotion of officers.

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.

COUNT ...


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