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HERRON v. CITY OF CHICAGO

September 6, 1984

WILLIAM HERRON, ET AL., PLAINTIFFS,
v.
CITY OF CHICAGO, ET AL., DEFENDANTS.



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

ORDER

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 eligibility list.

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 Supervisors.

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 Supervisor jobs.

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 contention seriatim.

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 ...

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