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PETIT v. CITY OF CHICAGO

May 16, 1991

ROBERT PETIT, et al., Plaintiffs,
v.
CITY OF CHICAGO, et al., Defendants



The opinion of the court was delivered by: HART

 WILLIAM T. HART, UNITED STATES DISTRICT JUDGE.

 I. FACTS

 In 1973, the United States Department of Justice brought suit against the City of Chicago (the "City") charging discrimination in hiring and promoting blacks, Hispanics and women within the Chicago Police Department. As a result, in January of 1976, a permanent injunction was entered barring the City from using any tests, qualifications, standards or procedures that were not job-related. In particular, the City was enjoined from excluding "blacks, Spanish-surnamed persons or women from employment opportunities in the Chicago Police Department." United States v. City of Chicago, 411 F. Supp. 218, 248 (N.D. Ill. 1976), aff'd, 549 F.2d 415, 439 (7th Cir. 1977). The City was specifically ordered to "maintain a sergeant mix reasonably representative of the patrol force." Id. at 250.

 In 1978 and 1979, the City administered a sergeants' examination to determine promotion eligibility in rank order. The City compiled a sergeants' promotion list based upon the results of the 1978-79 examination, and the City, under the court's supervision, promoted police officers to the rank of sergeant in rank order and subject to imposed ratios. United States v. City of Chicago, 663 F.2d 1354 (7th Cir. 1981) (modifying ratios for promotion of sergeants to twenty-five percent black and Hispanic males; five percent female).

 From 1985 to 1988, the City developed and administered a new sergeants' examination. The 1985-88 examination consisted of four parts, each of which was weighted differently: (1) 28% weight for the multiple choice written test; (2) 29% weight for the short-answer written test; (3) 40% weight for an oral board examination; and (4) 3% weight for performance evaluations. When the tests were first scored, there was an impermissible disparate impact on blacks and Hispanics. United States v. City of Chicago, No. 73 C 2080, memorandum order at 3 (N.D. Ill. Nov. 21, 1988) (1988 U.S. Dist LEXIS 13242). The City moved to superimpose a quota on the sergeants' list to make adjustments in favor of Hispanic and female applicants. The City's motion was denied. Id.

 Many of the plaintiffs in the present case intervened in City of Chicago charging, among other things, discrimination regarding the scoring of the 1985-88 sergeants' promotional examination. *fn1" Specifically, the intervenors complained that the City "manipulated" the raw scores of the sergeants' promotion test to purposefully benefit racial minorities and, therefore, discriminate against white applicants for sergeant. Intervention was upheld in United States v. City of Chicago, 870 F.2d 1256 (7th Cir. 1989). Thereafter, the City moved to dismiss the intervenors' claims. On October 26, 1990, some claims were dismissed with prejudice and some without prejudice. *fn2"

 Having failed to obtain relief in City of Chicago, the intervenors, along with additional white police officers, filed the present action against the City and also against numerous city officials. *fn3" The complaint in this action again charges discrimination in the scoring and use of the 1985-88 sergeants' examination. The City now moves to dismiss the present lawsuit arguing, among other things, the doctrine of res judicata.

 II. CLAIMS PREVIOUSLY DISMISSED WITH PREJUDICE

 Concerning the doctrine of res judicata,4 the City's motion to dismiss divides the plaintiffs into two distinct groups: Those plaintiffs who intervened in United States v. City of Chicago (the "intervenors") and those plaintiffs who did not (the "non-intervenors"). The first inquiry is whether the intervenors are precluded by the doctrine of res judicata from bringing the present suit. If they are, the second inquiry is whether the non-intervenors are in privity with the intervenors and, therefore, also precluded from bringing suit.

 A. Res Judicata

 The federal common law of res judicata determines the preclusive effect of a federal court judgment on a subsequent federal court case. Conner v. Reinhard, 847 F.2d 384, 394 (7th Cir. 1988) (citing In re Energy Coop., Inc., 814 F.2d 1226, 1230 (7th Cir. 1987)). Under the doctrine of res judicata, a final judgment on the merits bars further claims by parties or their privies based on the same cause of action. Car Carriers, Inc. v. Ford Motor, 789 F.2d 589, 593 (7th Cir. 1986) (citing Brown v. Felsen, 442 U.S. 127, 131, 60 L. Ed. 2d 767, 99 S. Ct. 2205 (1979)) ("Once a transaction has caused injury, all claims arising from that transaction must be brought in one suit or be lost."). Previously, a final judgment on the merits was entered concerning the claims of the intervenors. United States v. City of Chicago, 752 F. Supp. 252 (N.D.Ill. 1990) (expressly stating that there was no just reason for delay and expressly directing entry of final judgment); see Fed.R.Civ.P. 54(b); see also Gilldorn Sav. Ass'n v. Commerce Sav. Ass'n, 804 F.2d 390 (7th Cir. 1986) (citing American Postal Workers Union v. United States Postal Service, 736 F.2d 317, 319 (6th Cir. 1984)) ("Final judgment in the case as a whole is not necessary; motion to dismiss decision can be given preclusive effect as long as issue finally decided.").

 In determining the scope of a "cause of action," the Seventh Circuit uses the "same transaction" test. Alexander v. Chicago Park District, 773 F.2d 850 (7th Cir. 1985). Under this test, a cause of action is defined as "a 'single core of operative facts' which give rise to a remedy." Id. at 854. Once a transaction has caused injury, all claims arising from that transaction must be brought in one suit. Thus, a "mere change in the legal theory does not create a new cause of action." Id. Under the "same transaction" test, the present case is based upon the same cause of action as United States v. City of Chicago. The single core of operative facts that was the subject of the intervenors' complaint in City of Chicago is the same as alleged in this case -- the standardization of the 1985-88 sergeants' promotion examination for rater and race. Plaintiffs do not argue otherwise. Therefore, res judicata applies.

 Several of the intervenors' claims were dismissed with prejudice and one claim was dismissed without prejudice. As parties in City of Chicago, the intervenors are precluded by the doctrine of res judicata. See Local 322 v. Johnson Controls, Inc., 921 F.2d 732 (7th Cir. 1991); County of Cook v. Midcon Corp., 574 F. Supp. 902, 913-14 (N.D.Ill. 1983) (Intervenors are parties). The intervenors' claims that were previously dismissed with ...


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