United States District Court, Northern District of Illinois, E.D
September 6, 1984
WILLIAM HERRON, ET AL., PLAINTIFFS,
CITY OF CHICAGO, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Bua, District Judge.
The instant case is before the Court on a petition for a Rule
to Show Cause why the defendants should not be held in contempt
of the 1972 consent decree entered in Shakman v. Democratic
Organization of Cook County, No. 69 C 2145, reprinted in Shakman
v. Democratic Organization of Cook County, 481 F. Supp. 1315, 1356
app. (N.D.Ill. 1979). Before the Court is the defendants' Motion
to Dismiss the plaintiffs' Second Amended Complaint. For the
reasons stated herein, defendants' motion is granted in part and
denied in part.
The instant case was originally filed on June 22, 1983. In the
Second Amended Complaint, the six plaintiffs allege that they are
all employed by the City of Chicago as Water Rate Takers in the
City's Department of Water. They contend that prior to the time
of the filing of the instant suit, the defendants gave
preferential treatment in promotions to the position of
Supervisor of Water Rate Takers to individuals who obtained
recommendations and political sponsorship from high ranking
officials of the local Democratic Party and from local ward
organizations. Specifically, the plaintiffs contend that in order
to be promoted, an individual was required to obtain the
requisite recommendation which would be communicated to the
Mayor's Office. The Mayor's Office would then request that the
Department of Water appoint the recommended person as Supervisor.
Plaintiffs contend that nine individuals obtained their
Supervisor's position in the above manner. As to six of these
appointments, made prior to August, 1979, no public notice was
given announcing the availability of the positions. As to the
remaining three, a March, 1982 announcement gave notice of the
availability of the positions. This notice stated that a test
would be given for the position and would be open only to
applicants who were residents of the City of Chicago who had a
minimum of two years experience as Water Rate Takers or the
equivalent training and experience.
The plaintiffs were found eligible for the positions and, on
June 26, 1982, took the test. Having passed the examination, on
July 15, 1982 the plaintiffs' names were placed on the
eligibility list from which the Supervisor positions were to be
filled. Also on the list were the names of two other individuals
who had taken the test with plaintiffs, and the name of Wyman
Porche who had not. In September, 1982, Wyman Porche was
permanently appointed Supervisor of Water Rate Takers pursuant to
the political sponsorship and preferences of Alderman Wilson
Frost and State Representative Emille Jones.*fn1
In December, 1982, an administrative assistant to defendant
John Corey, Commissioner of the Department of Water, received a
phone call from an administrative assistant to Jane Byrne who, at
that time, was Mayor of the City of Chicago. The administrative
assistant requested that Michael Miller and Emanuel Estaban be
appointed supervisors despite the fact that neither was on the
On December 28, 1982, with the assistance and political
sponsorship of Chicago Alderman Richard F. Mell, Emanuel Estaban
was given a privately held Supervisor's examination. Similarly,
on January 13,
1983, Michael Miller was allowed to take a privately held
examination after receiving the assistance and sponsorship of
Michael Madigan, State Representative and 13th Ward Committeeman.
On February 1, 1983, Estaban and Miller were appointed
The plaintiffs contend that because their names properly
appeared on the eligibility list, they should have been made
Supervisors instead of the individuals chosen. Therefore,
plaintiffs request that the Court order the removal of the nine
Supervisors from their positions and order the defendants to
appoint the plaintiffs to the vacant Supervisor positions with
full back pay and employment benefits dating from June, 1982, the
time plaintiffs contend they should have been appointed to the
The defendants have moved to dismiss claiming: 1) that the
plaintiffs have failed to state a claim under the 1972 Shakman
consent decree; 2) that laches should bar the claims concerning
the promotions made prior to the advancements of Estaban and
Miller; and 3) that the second amended complaint should be
dismissed because it is unverified. The Court will address each
I. Failure to State a Claim Under the 1972 Shakman Consent Decree
The defendants contend that the instant case involves
politically motivated hiring which is not covered by the 1972
Shakman decree and that the plaintiffs have thus failed to state
a claim thereunder. The plaintiffs counter by arguing that the
very language of the 1972 decree mandates application of that
consent order to the instant case.
Under the 1972 decree, the defendants are prohibited from:
(1) Conditioning, basing or knowingly prejudicing or
affecting any term or aspect of government
employment, with respect to one who is at the time
already a government employee, upon or because of any
political reason or factor.
481 F. Supp. at 1358.
The parties expressly reserved the question of whether
political sponsorship or other political considerations could be
taken into account in the hiring of employees. This question was
resolved in 1979 when the Court ruled that in hiring for most
positions, political considerations should not be a factor.
However, it left the specific means of insuring that such factors
would not play a part in the hiring decision for resolution at a
later time. This issue was settled on June 20, 1983 by the
consent of the parties. Shakman v. Democratic Organization of
Cook County, 569 F. Supp. 177 (N.D.Ill. 1983).
It is the opinion of this Court that the actions complained of
herein are within the ambit of the 1972 decree. First, the Court
notes that each plaintiff is an employee of the City. Moreover,
at some point, each was qualified for the Supervisor position as
measured by objective prerequisites. Finally, the positions
sought by the plaintiffs were of the very sort which a Water Rate
Taker might expect to gain once he had proven himself qualified
at his position. The plaintiffs' predicaments were thus quite
different from those of an individual who is not a City employee
who seeks to be newly hired. Clearly, by failing to place the
plaintiffs in the desired positions, defendants prejudiced or
affected the plaintiffs' term of employment so as to expose
themselves to liability under the 1972 decree.
Defendants also contend that the claims as to certain of the
positions should be barred by the doctrine of laches.
Specifically, it is defendants' position that all promotions
which took place prior to 1982 cannot be challenged.
As this Court has previously noted:
A decision on the issue of laches rests within the
sound discretion of the trial court. Baker
Manufacturing Co. v. Whitewater Manufacturing Co.,
430 F.2d 1008, 1009 (7th Cir. 1970). This discretion,
while broad, is not unfettered by appropriate
standards. Goodman v. McDonnell Douglas Corp.,
606 F.2d 800,
804 (8th Cir. 1979). [Thus] where, as here, a case
involves government employment, the court is bound by
public policy which requires the prompt assertion of
the employee's rights so that government service is
disturbed as little as possible and two salaries are
not paid for a single service. United States ex rel.
Arant v. Lane, 249 U.S. 367 [39 S.Ct. 293, 63 L.Ed.
650] (1919), quoted in Brown v. United States,
418 F.2d 442, 444 (5th Cir. 1970). It is well settled in
this Circuit that the plaintiff bears the burden of
explaining its delay in bringing suit. Lingenfelter
v. Keystone Consolidated Industries, Inc.,
691 F.2d 339, 340 (7th Cir. 1980); Baker Manufacturing Co.,
430 F.2d at 1011-15. See, also, Shakman v. Democratic
Organization of Cook County, (Petition of Joseph
Galvin), 549 F. Supp. 801 (N.D.Ill. 1982).
Gurgone v. City of Chicago, 587 F. Supp. 1347
at 1352 (N.D.Ill.
This Court agrees with defendants in their position that the
promotions made prior to 1982 should be barred by laches. Despite
their contentions that the political nature of these promotions
was concealed from them prior to the institution of this lawsuit,
plaintiffs fail to set out any specific information that was
withheld from them which would have permitted them to file suit
earlier had they had knowledge thereof. Instead, the plaintiffs
baldly state, ". . . between 1972 and the summer of 1983,
defendants failed to implement any changes in their patronage
practices . . ." Such a contention does not sufficiently explain
away a delay in bringing suit which, in the case of the first
promotion plaintiffs seek to have nullified, approaches nine
The permanent promotion of Porche may, however, be challenged
insofar as such promotion may have denied the plaintiffs their
rights. Such promotion took place within ten months of the filing
of the instant suit, thus constituting a timely assertion of
rights by the plaintiffs which does not prejudice the defendants
and cannot be barred by laches.
III. Lack of Verification
As previously noted, by the instant suit, plaintiffs seek to
have defendants held in contempt of court. Under Local Rule 18,
all petitions for a Rule to Show Cause must be accompanied by an
affidavit setting out with particularity the misconduct
complained of. U.S.Dist.Ct. N.D.Ill. Civil Rule 18.
In the instant case, plaintiffs style their complaint a "Second
Amended Verified Complaint." Nevertheless, no affidavit verifying
the facts contained in the complaint has been filed. The
complaint thus fails to comply with Local Rule 18. Plaintiffs
will, however, be given leave to amend to bring the complaint
into compliance with Rule 18, and defendants' Motion to Dismiss
on this basis shall be denied.
For the reasons stated herein, defendants' motion to dismiss is
denied insofar as it contends that the complaint fails to set out
a claim under the 1972 decree. However, the motion to dismiss is
granted as to all challenged promotions which occurred prior to
1982. Plaintiffs are hereby given 30 days from this order to
properly verify their complaint so it may comply with Local Rule
IT IS SO ORDERED.