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May 13, 1983


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 at 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 summary judgment.*fn2

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.

Title VII provides,

  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 provide,

    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

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