The opinion of the court was delivered by: Prentice H. Marshall, District Judge.
Plaintiff is a Chicago police officer of Chinese national
origin. He has filed this action challenging certain
employment practices of the City of Chicago under Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e to
2000e-17 (1976), and as violative of the due process clause of
the fourteenth amendment to the Constitution and hence
42 U.S.C. § 1983 (Supp.IV 1980). Also named as defendants are the
superintendent of police and the city's director of personnel.
Defendants have moved to dismiss the complaint.
Count I of the complaint is brought under Title VII.
Plaintiff contends that from 1976 to 1978 he received low
performance ratings from his superiors which in effect doomed
his chances to be promoted to sergeant. Plaintiff learned of
his low performance ratings in September of 1978. However, he
did not file a complaint with the Equal Employment Opportunity
Commission until April 10, 1980. Under Title VII, an
administrative complaint must be filed within 300 days of the
challenged discriminatory act. See 42 U.S.C. § 2000e-5(e)
(1976). Plaintiff contends that the discriminatory act at issue
is the use of the ratings as part of the 1979 sergeants' exam,
which did not occur until November, 1979, rather than the
ratings themselves. However, the Supreme Court has held that
the statutory time period begins to run on the date plaintiff
learns of the actual discrimination, and not on the date that
its consequences become painful. See Delaware State College v.
Ricks, 449 U.S. 250, 258, 101 S.Ct. 498, 504, 66 L.Ed.2d 431
(1980). There, it was held that the date on which the plaintiff
had learned that his tenure would be denied, rather than the
date he was discharged, began the running of the statute, since
it was the denial of the tenure that was the challenged act.
See Chardon v. Fernandez, 454 U.S. 6, 8, 102 S.Ct. 28, 30, 70
L.Ed.2d 6 (1981) (per curiam). Here, the allegedly illegal acts
issue are plaintiffs' performance ratings. It is the ratings
themselves that are alleged to be discriminatory; no
allegation is made that they were not applied to the exam in
an evenhanded fashion in November, 1979. Thus, by September,
1978, the challenged act was complete. The use of the low
ratings in November, 1979, was only the point at which the
consequences of the low ratings became painful. By September,
plaintiff knew everything he needed to know to file a Title
VII action but did not do so. As a result, his Title VII
action is time-barred.*fn1
Count II is brought under § 1983 and alleges that defendants'
use of performance ratings violates due process. The parties
agree that the constitutional standard applicable to this claim
is that set out in DiIulio v. Board of Fire and Police
Commissioners, 682 F.2d 666 (7th Cir.), cert. denied, ___ U.S.
___, 103 S.Ct. 451, 74 L.Ed.2d 605 (1982).
While the state can require high standards of
qualifications, these standards must have a
rational connection with the applicant's fitness
or capacity to be a police sergeant. Attaching
unreasonable and arbitrary requirements is
violative of constitutional due process.
Id. at 668-69 (citation omitted).
Plaintiff's complaint clearly states a claim under
DiIulio. It alleges that his performance ratings were arbitrary
and that performance ratings cannot rationally be used to
predict performance as a sergeant. First Amended Complaint ¶¶
2-3 to 2-4. Defendants do not contest the sufficiency of
plaintiff's pleading but rely instead on this court's finding
that performance ratings could be used as a basis for promotion
to sergeant in United States v. City of Chicago, 411 F. Supp. 218,
238-39, 241 (N.D.Ill. 1976), aff'd in part and rev'd in
part, 549 F.2d 415 (7th Cir.), cert. denied, 434 U.S. 875, 98
S.Ct. 225, 54 L.Ed.2d 155 (1977). However, since that
contention goes outside the pleadings it is premature. If
defendants wish to pursue this argument they should move for
Count III is brought under Title VII. Taking its allegations
as true, the facts are as follows. The City of Chicago grants
12 paid holidays per year to its police officers, regardless
of their religion. It also grants certain paid holidays to
employees who are members of certain "minority" religions such
as Judaism, Greek Orthodox and Muslim. Plaintiff, who is
Protestant, receives fewer paid holidays than do members of
these religions and is forced to work certain overtime and
otherwise undesirable assignments. As a result, defendants
have imposed an undue burden on plaintiff, it is alleged, and
have discriminated against him on the basis of his religion in
violation of Title VII.
It shall be an unlawful employment practice for
an employer —
(1) . . . to discriminate against any
individual with respect to his compensation,
terms, conditions, or privileges of employment,
because of such individual's . . .
religion. . . .
42 U.S.C. § 2000e-2(a)(1) (1976). The statute goes on to
The term "religion" includes all aspects of
religious observance and practice, as well as
belief, unless an employer demonstrates that he
is unable to reasonably accommodate to an
employee's religious observance or practice