United States v. City of Chicago, 752 F. Supp. 252, 255 (N.D.Ill. 1990) (footnote and emphasis added).
The intervenors cannot avoid an express federal court order that dismissed their claims with prejudice by adding the non-intervenors and refiling this claim. A finding of privity comports with the policy behind res judicata. If the intervenors succeeded originally, all of the white police officers would have benefitted -- even the non-intervenors. On the other hand, if the intervenors lost, which they did, the non-intervenors cannot obtain a second determination by bringing this separate action. Such an action would encourage "fence-sitting" and discourage the principles and policies the doctrine of res judicata was designed to promote.
Arguing that the intervenors and non-intervenors are not in privity, plaintiffs rely upon Grann v. City of Madison, 738 F.2d 786, 789 (7th Cir. 1984); cf. United States v. City of Chicago, 870 F.2d 1256, 1263 (7th Cir. 1989) (noting that Grann line of cases has been rejected by the Eleventh Circuit in a thoughtful opinion) (Eleventh Circuit opinion affirmed by Martin v. Wilks, supra). In Grann, the prior judgment was entered in state court, and the Court of Appeals expressly decided the issue of privity on the basis of Wisconsin res judicata law. See Grann, 738 F.2d at 788-89. The present case entails application of federal res judicata law and, consequently, Grann is inapposite. Plaintiffs also cite Freeman v. Lester Coggins Trucking, Inc., 771 F.2d 860 (5th Cir. 1985). In that case, the prior litigant was the husband-father of the present litigants, his wife and children. The Fifth Circuit held that the family relationship was not "sufficiently close" under the doctrine of virtual representation to support preclusion of the wife and children's later claims. Freeman, 771 F.2d at 863-64. To preclude a subsequent nonparty under the doctrine of virtual representation required "more than a showing of parallel interests or, even, a use of the same attorney in both suits." Id. at 864. Here, however, more factors weigh in favor of a finding of privity than just the use of the same attorney and parallel interests.
Lastly, a finding of privity between the intervenors and the non-intervenors follows the trend broadening the concept of parties and their privies. See Index Fund, Inc. v. Hagopian, 677 F. Supp. 710, 716 (S.D.N.Y. 1987).
The claims dismissed with prejudice include all claims brought under 42 U.S.C. § 1981 and all pendent state law claims. Thus, the only claims which survive the earlier dismissal with prejudice are the Count I equal protection claims brought under 42 U.S.C. § 1983 (which were expressly dismissed without prejudice) and the Count III claim of plaintiff Thomas Earth. The Count I claims brought pursuant to 42 U.S.C. § 1981, as well as all Count II pendent state law claims, are dismissed.
C. New Conduct
Plaintiffs argue that res judicata does not apply against any of the plaintiffs for new conduct -- specifically, promotions made in July and November of 1990, and February of 1991. The new conduct that plaintiffs allege, however, is simply promotions made from the 1985-88 sergeants' list. Plaintiffs' lawsuit alleges discrimination in the standardization and scoring of the 1985-88 test. Any promotions made from the list that resulted from the test is not "new conduct." Rather, each promotion made from the disputed list may result in a separate and individual remedy if the "original conduct" -- the standardization and scoring of the test -- is found to be in violation of 42 U.S.C. § 1983. Thus, res judicata does apply to any promotions made from the disputed list. If the City engages in any "new conduct" such as administering a new sergeants' examination or changing the list that resulted from the 1985-88 examination, then plaintiffs would not be barred by the doctrine of res judicata.
III. MOTION TO DISMISS
Dismissal under Federal Rules of Civil Procedure 12(b)(6) for failure to state a claim is appropriate if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Strauss v. City of Chicago, 760 F.2d 765, 767 (7th Cir. 1985) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)). When presented with a motion to dismiss, a court construes pleadings liberally, and mere vagueness or lack of detail does not constitute a sufficient ground for dismissal. Strauss, 760 F.2d at 767. Nonetheless, a complaint must state either direct or inferential allegations concerning all of the material elements necessary for recovery under the relevant legal theory. Papapetropoulous v. Milwaukee Transp. Services, 795 F.2d 591, 594 (7th Cir. 1986). In deciding a motion to dismiss, factual allegations of the complaint, as well as any reasonable inferences drawn from them, are taken as true. Neumann v. John Hancock Mut. Life Ins., 736 F. Supp. 182, 183 (N.D.Ill. 1990).
IV. COUNT II EQUAL PROTECTION CLAIMS BROUGHT PURSUANT TO 42 U.S.C. § 1983
Local government units can be sued under § 1983. Monell v. Department of Social Services, 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). The government's liability, however, is not based upon the doctrine of respondeat superior. Id. at 691-92 (government body cannot be held liable under § 1983 merely because it employs a tortfeasor); but see Pembaur v. City of Cincinnati, 475 U.S. 469, 89 L. Ed. 2d 452, 106 S. Ct. 1292 (1986) (decision of one official with policymaking authority in a given area constituted official policy). The alleged unconstitutional governmental action must implement or execute "a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers. Moreover, . . . local governments . . . may be sued for constitutional deprivations visited pursuant to governmental 'custom' even though such a custom has not received formal approval through the body's decisionmaking channels." Monell, 436 U.S. at 690-91. A "custom" will be attributed to a government body when the duration and frequency of a practice warrants a finding of either actual or constructive knowledge by the governing body that the practice has become customary among employees. See Jones v. City of Chicago, 856 F.2d 985, 995-96 (7th Cir. 1988) (custom of keeping "street files" was department wide and long standing).
Plaintiffs allege that the City manipulated scores on the 1985-88 sergeants' examination in accordance with a race-conscious policy of increasing the number of blacks and Hispanics promoted and decreasing the number of whites. If plaintiffs' allegations are true, the City of Chicago may be held liable.
Taking the factual allegations of the complaint, as well as any reasonable inferences drawn from them, as true, the complaint adequately alleges an equal protection claim under 42 U.S.C. § 1983 against the City. Therefore, plaintiffs' complaint is sufficient under section 1983 to withstand defendants' motion to dismiss. See United States v. City of Chicago, 870 F.2d 1256 (7th Cir. 1989).
V. QUALIFIED IMMUNITY
Defendants argue that plaintiffs' claims should be dismissed because defendants are protected by the doctrine of qualified immunity. Generally, "public officials are entitled to immunity unless it has been authoritatively decided that certain conduct is forbidden." Alliance to End Repression v. City of Chicago, 820 F.2d 873, 875 (7th Cir. 1987). Determination of qualified immunity is a legal question whose answer is dependent upon the particular facts of the case. Green v. Carlson, 826 F.2d 647, 649 (7th Cir. 1987). When a plaintiff sues a government official in his individual capacity,
the plaintiff is trying to impose personal liability upon that official for actions performed under color of state law. Kentucky v. Graham, 473 U.S. 159, 165, 87 L. Ed. 2d 114, 105 S. Ct. 3099 (1985). Plaintiffs allege that defendants manipulated the scores and positions of the eligibility list for the "race-conscious purpose of increasing the number of blacks and Hispanics promoted and decreasing the number of whites." First Amended Complaint at 5. In response, defendants state that standardization of the 1985-88 sergeants' examination was based upon a valid affirmative action program and, thus, defendants are entitled to qualified immunity.
The Supreme Court enunciated the test for qualified immunity holding that "government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982). The Harlow standard is specifically designed to "avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment."
Malley v. Briggs, 475 U.S. 335, 341, 89 L. Ed. 2d 271, 106 S. Ct. 1092 (1986). Whether public officials may be held personally liable for allegedly unlawful official actions turns upon the "objective reasonableness" of the officials' actions. The officials' actions must be assessed in light of the legal rules that were "clearly established" at the time that the action was taken. Harlow, 457 U.S. at 818; Colaizzi v. Walker, 812 F.2d 304 (7th Cir. 1987) (test is "whether the law was clear in relation to the specific facts confronting the public official when he acted").
To be "clearly established," the right must be "sufficiently particularized to put potential defendants on notice that their conduct probably is unlawful." Colaizzi, 812 F.2d at 310 (Bauer, C.J., dissenting on other grounds) (citing Azeez v. Fairman, 795 F.2d 1296, 1301 (7th Cir. 1986)). Since 1978, any distinctions between citizens based upon race, including affirmative action programs, are presumptively unconstitutional. Regents of University of California v. Bakke, 438 U.S. 265, 57 L. Ed. 2d 750, 98 S. Ct. 2733 (1978). Nevertheless, to correct the effects of past discrimination, a narrowly tailored race-conscious affirmative action program is permissible under the Fourteenth Amendment. City of Richmond v. J.A. Croson, 488 U.S. 469, 102 L. Ed. 2d 854, 109 S. Ct. 706 (1989). In fact, when implemented to remedy past discrimination, affirmative action programs may be both legal and appropriate. Id. at 504; Johnson v. Transportation Agency, 480 U.S. 616, 94 L. Ed. 2d 615, 107 S. Ct. 1442 (1987) (fitting the defense of a valid affirmative action program within the analytical framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973)); Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 90 L. Ed. 2d 260, 106 S. Ct. 1842 (1986) (plurality) (affirmative action plan must be justified by a compelling governmental interest and be narrowly tailored to effectuate the plan's purpose).
Affirmative action case law in 1984 held that to implement an affirmative action plan, there must exist: (1) some type of statistical disparity between the local labor force and the minority composition of the employer's work force and (2) a time limit on the plan. Cygnar v. City of Chicago, 865 F.2d 827, 844 (7th Cir. 1989) (citing Lehman v. Yellow Freight Sys. Inc., 651 F.2d 520 (7th Cir. 1981)). Defendants argue, consistent with the allegations of the complaint,
that they standardized the 1985-88 sergeants' test because of a disparate impact and that the adjusted test results were used to compose a promotion list that had a limited life. The plaintiffs' constitutional right to be free of discrimination was not "clearly established" in 1985, nor by 1988 when the standardization occurred. Under the then prevailing law, defendants were not on notice that adhering to the affirmative action program alleged in the complaint would be unlawful. Moreover, given the state of the law, defendants could have reasonably believed that failing to act in the face of the test's disparate impact would be unlawful. During the time span covered by the 1985-88 sergeants' examination, defendants' actions, taken to correct the examination's disparate impact, did not violate "clearly established" affirmative action law. In light of the Supreme Court's recent decision in City of Richmond, defendants' actions, taken to remedy admitted past discrimination within the ranks of the Chicago Police Department, is even less likely to violate "clearly established" affirmative action law.
Defendants have articulated a non-discriminatory rationale for their actions -- an affirmative action program -- which is expressly alleged in plaintiffs' complaint. See also United States v. City of Chicago, No. 73 C 2080, memorandum order (N.D. Ill. Nov. 21, 1988). Plaintiffs have alleged insufficient facts to support that defendants' justification was pretextual or that a defense of an affirmative action plan was invalid given the existing law at the time the actions were taken. See Johnson v. Transportation Agency, 480 U.S. 616, 94 L. Ed. 2d 615, 107 S. Ct. 1442 (1987); Cygnar v. City of Chicago, 865 F.2d 827, 837 (7th Cir. 1989). Further, plaintiffs fail to allege any facts that show defendants did anything unlawful when they adjusted the 1985-88 sergeants' examination to adjust for the test's disparate impact.
The fact that defendants adjusted test scores, without more, does not subject government officials to individual liability. See Malley v. Briggs, 475 U.S. 335, 341, 89 L. Ed. 2d 271, 106 S. Ct. 1092 (1986). Therefore, defendants are entitled to qualified immunity and the motion to dismiss the individual defendants is granted.
VI. COUNT III CLAIM BROUGHT ON BEHALF OF PLAINTIFF THOMAS EARTH
In Count III, plaintiffs apparently attempt to bring an "enforcement action" to compel defendants to comply with an alleged order from the previous case, United States v. City of Chicago, No. 73 C 2080. Plaintiffs, however, do not support their complaint with a copy of any order. The wording quoted in the complaint is only advisory and not presented in the form of a judicially enforceable order. Plaintiffs fail to state a claim upon which relief may be granted and, therefore, defendants' motion to dismiss Count III is granted.
IT IS THEREFORE ORDERED that:
(1) Defendants' motion to dismiss Count I claims brought pursuant to 42 U.S.C. § 1981, as well as all Count II pendent state law claims and Count III, is granted.
(2) Defendants' motion to dismiss Count I equal protection claims brought under 42 U.S.C. § 1983 is denied.
(3) Defendants' motion to dismiss defendants Richard M. Daley, Glenn Carr, Kelly R. Welsh, Eugene Sawyer, Jesses Hoskins, Judson Miner, Brigette Arimond, Robert Joyce, Leroy Martin, Gerald Cooper, Edward Brooks and Hubert Holton, both in their official and individual capacities, is granted.
(5) Defendant City of Chicago is ordered to answer plaintiffs' complaint by May 30, 1991.
(6) Status hearing set for June 6, 1991 at 9:15 a.m.