The opinion of the court was delivered by: PLUNKETT
PAUL E. PLUNKETT, UNITED STATES DISTRICT JUDGE
Plaintiffs Council 31, American Federation of State, County and Municipal Employees, AFL-CIO ("Council 31"), and Delores Barrett, Karen Bryson, and Sidney Bush, individually and as prospective class representatives, brought suit under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"), against Sally Ward, individually and as Director of the Illinois Department of Employment Security ("IDES"). By Memorandum Opinion and Order dated November 8, 1989, we denied the motion of the prospective class representatives to certify a class. By Memorandum Opinion and Order dated July 16, 1990, we granted the motion of Cindy Martin, Michelle Benford, Michael Keaton and Alonzo Patterson to intervene as plaintiffs and certify a class. Before us today are cross-motions for summary judgment. For the reasons set out below, we grant the defendants' motion for summary judgment.
This is the sixth Memorandum Opinion and Order in this case, and the history of this litigation is amply set forth in the previously issued opinions and will not be repeated here. See Mem. Op. and Orders, July 16, 1990, November 8, 1989, July 26, 1989, November 22, 1988, and April 27, 1987. Plaintiffs' lone remaining claim in this court is that the IDES layoffs which occurred on April 15, 1985, and during the period from May 1 to August 5, 1985, had an impermissible disparate impact on black employees of IDES and therefore violated Title VII.
Before us today are both plaintiffs' and defendants' motions for summary judgment. Defendants move for summary judgment on several grounds. They argue (1) each plaintiffs' claim is barred by the doctrine of collateral estoppel; (2) plaintiff McCalpine's claim is barred by the doctrine of res judicata; (3) plaintiffs' claim is barred by a prior settlement agreement between the parties; (4) given the undisputed facts, plaintiffs cannot establish a disparate impact race discrimination claim; (5) Title VII does not authorize "legal relief;" and (6) defendant Ward is immune from damages under the doctrine of qualified immunity. Plaintiffs respond and argue in opposition to each of the above arguments. In addition, plaintiffs filed what they styled a motion in limine. The thrust of plaintiffs' motion in limine is that defendants should be barred from arguing that there is a business justification for the layoff plan because defendants lost key evidence. At a status hearing in open court we converted plaintiffs' motion in limine to a motion for summary judgment. If we grant plaintiffs' motion in limine, plaintiffs argue we should grant them summary judgment because defendants would be unable to establish a business justification defense. Defendants argue in opposition to plaintiffs' motion.
We grant defendants' motion for summary judgment on the ground that plaintiffs have failed to meet their burden of establishing a prima facie case of disparate impact race discrimination. Because this is the only ground upon which we grant summary judgment for defendants, it is the only issue we address herein.
Title VII makes it an unlawful employment practice, inter alia, for an employer to discriminate against any individual with respect to hiring or the terms and conditions of employment because of such individual's race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a)(1). A plaintiff can prosecute a Title VII discrimination action under either of two theories: disparate treatment or disparate impact. When a plaintiff alleges disparate treatment discrimination, the "most easily understood type of discrimination," Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S. Ct. 1843, 1854 n. 15, 52 L. Ed. 2d 396 (1977), he or she alleges that an employer has treated that particular plaintiff less favorably than others because of the plaintiff's race, color, religion, sex, or national origin. In such disparate treatment cases, the plaintiff is required to prove that the defendant had a discriminatory intent or motive. See Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 108 S. Ct. 2777, 2784, 101 L. Ed. 2d 827 (1988).
Disparate impact discrimination was first recognized by the Supreme Court in Griggs v. Duke Power Co., 401 U.S. 424, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1971). In Griggs the Court held that a plaintiff did not necessarily have to prove intentional discrimination in order to establish that an employer violated Title VII. "In certain cases, facially neutral employment practices that have significant adverse effects on protected groups have been held to violate [Title VII] without proof that the employer adopted those practices with a discriminatory intent." Watson, 108 S. Ct. at 2784. The focus in a disparate impact case is usually on "statistical disparities, rather than specific incidents, and on competing explanations for those disparities." Id. at 2784-85. Plaintiffs in the instant case do not allege that defendants intentionally discriminated against plaintiffs on the basis of plaintiffs' race. Plaintiffs proceed only on a disparate impact theory.
In order to succeed in a disparate impact case, plaintiff must first prove its prima facie case. A prima facie case of disparate impact race discrimination has two elements. First, a plaintiff must identify a facially neutral "specific employment practice" that he or she contends has a discriminatory effect. Tagatz v. Marquette University, 861 F.2d 1040, 1042-43 (7th Cir. 1988); Gilty v. Village of Oak Park, 919 F.2d 1247, 1254 (7th Cir. 1990) ("one must first identify a specific employment practice before one can challenge it"). Second, a plaintiff must show that the employment practice has a significant adverse impact on the protected group. Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642, 109 S. Ct. 2115, 2121, 104 L. Ed. 2d 733 (1989).
Once a plaintiff has established a prima facie case of disparate impact, the burden shifts to the employer to offer a business justification for its use of the employment practice. In this phase of disparate impact cases "the employer carries the burden of producing evidence of a business justification for his employment practice. The burden of persuasion, however, remains with the disparate-impact plaintiff." Wards Cove, 109 S. Ct. at 2126.
Precious little has been written in the federal courts (at any level) about the meaning of the term "practice" in disparate impact prima facie case analysis. The only appellate court case (be the court Circuit or Supreme) we have been able to find which addresses the issue of what conduct constitutes a "practice" in the prima facie analysis is Beard v. Whitley County REMC, 840 F.2d 405, 409 (7th Cir. 1988), and we begin there.
In Beard, defendant-employer negotiated separate wage and benefits contracts with its two unions. One union represented "trades and crafts" employees who were predominantly male. The other union represented "office and clerical" employees who were predominantly female. In 1985, the trades and crafts union negotiated and received from the employer a wage and benefit package 6% higher than the previous package, while the office and clerical union was unable to ...