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ALLEN v. CITY OF CHICAGO

July 2, 1993

HENRY ALLEN, et al., Plaintiffs,
v.
CITY OF CHICAGO, A Municipal Corporation, CITY COUNCIL OF CHICAGO, RICHARD J. DALEY, Individually and as Mayor of the City of Chicago, GLENN E. CARR, Individually and as Commissioner Department of Personnel, Defendants.



The opinion of the court was delivered by: MARVIN E. ASPEN

 MARVIN E. ASPEN, District Judge:

 Plaintiffs, present and former employees of the City of Chicago, bring this putative class action against the City of Chicago, the Chicago City Counsel, Richard J. Daley (individually and as Mayor of the City of Chicago), and Glenn E. Carr (individually and as Commissioner of the Department of Personnel), alleging: (1) race discrimination in violation of Title VII of the Civil Rights Acts of 1964, as amended, 42 U.S.C. § 2000e et seq., and the Illinois Human Rights Act, 775 ILCS 5/1-101 et seq.; (2) age discrimination in violation of the Age Discrimination in Employment Act, as amended, 29 U.S.C. § 621 et seq., and the Illinois Human Rights Act, 775 ILCS 5/1-101 et seq.; (3) impairment of the right to enforce contracts as guaranteed under the Civil Rights Act of 1866, 42 U.S.C. § 1981; (4) political discrimination in violation of the First Amendment right to free speech and association; and (5) discriminatory distribution of federal funds in violation of 42 U.S.C. § 2000 (d). Presently before the court are (i) plaintiffs' motion for class certification regarding claims of race discrimination, and (ii) defendants' motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. For the reasons set forth below, the motion for class certification is denied and defendants' motion to dismiss is granted in part and denied in part.

 I. Background

 Beginning in May of 1989, the City of Chicago (the "City") initiated a program designed to reorganize its work force. Pursuant to this plan, the City eliminated the Department of Economic Development, the Department of Planning, the Department of Public Works, and the Building Board of Appeals. As of October, 1991, these departments had employed approximately 1,045 city workers. In January of 1992, the City created the Department of Fleet Management (462 employees), the Department of General Services Bureau of Public Engineering (607 employees), the Department of Environment (65 employees), the Department of Planning and Development (88 employees), and the Department of Transportation (340 employees). Additionally, the City entered into contracts with private companies and persons to perform jobs previously fulfilled by city employees. In the process of this restructuring, a large number of employees were laid off, demoted and discharged from city employment. At the same time, the City transferred employees to similar positions in other departments, promoted city employees and hired new workers. In all, the City's reorganization affected approximately 2,834 city employees.

 As a group, plaintiffs claim that the City's reorganization had a disproportionate impact on black and hispanic employees, those over forty years of age, and those who were political opponents of Mayor Daley. In support of these allegations, plaintiffs assert: (1) 62% of those employees affected by the reorganization were either black or hispanic; (2) 52% of the city workers hired through the restructure were white, while whites comprise only 37.9% of the City's population; (3) a majority of the black and hispanic employees adversely affected by the reorganization were over 40 years of age, while white employees under the age of 40 were hired; and (4) a number of the employees affected by the restructure were supporters of the late Harold Washington and Eugene Sawyer, political opponents of Mayor Daley.

 Of the 62 plaintiffs named in the first-amended complaint, only ten have filed charges of race discrimination with the Equal Employment Opportunity Commission ("EEOC") and have received notices of right to sue in the United States District Court. These ten individuals seek to act as representatives of the putative class regarding race discrimination, and their individual circumstances can be summarized as follows. Henry Allen, a 59 year old black man, was employed with the Department of Aviation from 1976 to June 30, 1991, at which time he was laid off because of a reduction of staff. Allen claims that he was discriminated against in that it took him 5 1/2 years to receive his first promotion and 4 1/2 years to receive his second, while certain white employees were promoted at a more rapid pace. After Allen was laid off, a number of white employees were promoted within the department. Allen supported the campaigns of both Mayor Washington and Mayor Sawyer.

 Julius Body, a 39 year old black man, began his employment with the Department of Aviation on November 2, 1987, as a Security Guard. On January 1, 1992, the City eliminated the position of Security Guard and created the position of Security Officer. Body applied for the position of Security Officer, subjecting himself to a written test, a urine test, and a psychological test. Body was not selected for the position and, on March 6, 1992, along with 39 other Security Guards (38 of which were black), he was laid off. While the City laid off 39 black Security Guards from the Department of Aviation, the City hired, promoted or retained certain white Security Officers. Body supported the campaigns of both Mayor Washington and Mayor Sawyer.

 Jane Cole, a 59 year old black woman, began her employment with the Department of Housing on July 11, 1979. Over the years she has held the positions of Planning Intern, Senior Research Assistant, Loan Processing Officer Assistant, Loan Processing Officer and, most recently, Relocation Representative. Cole was laid off from her position as Relocation Representative on December 31, 1991. Cole alleges that race played a role in her termination as certain white employees with less seniority were not laid off. Specifically, she was not afforded an opportunity to move back to her previous position as a Loan Processing Officer, which was occupied by a white person with less seniority at the time Cole was laid off.

 Eddie Ellen, a 43 year old black man, was laid off on December 31, 1991, after four years as the Coordinator of Energy Conservation in the Department of General Services. Many of Ellen's white co-employees were automatically transferred from the Department of General Services to the newly formed Department of Environment, which assumed the responsibility for energy management. Despite a gratuitous interview during which Ellen was led to believe that he was going to receive a position with the new department, Ellen was not reemployed. Ellen supported the campaigns of both Mayor Washington and Mayor Sawyer.

 Angel Jimenez, a 32 year old hispanic man, began his employment with the Department of Aviation in 1987, as a Security Guard. As previously indicated, on January 1, 1992, the City eliminated the position of Security Guard and created the position of Security Officer. Jimenez applied for the position of Security Officer in August, 1991, and February, 1992. Nonetheless, Jimenez was not selected for the position and, on March 6, 1992, he was laid off. While the City laid off 40 Security Guards (consisting of Jimenez and 39 black men) from the Department of Aviation, the City hired, promoted or retained certain white Security Officers.

 John McMullin, a 55 year old black man, began his employment in the Department of Housing as a Relocation Representative in 1968, serving in that capacity for 24 years. He was laid off on November 26, 1991. McMullin alleges that race played a role in his termination as other white employees within the Department of Housing were not laid off despite possessing considerably less experience than McMullin. Although two white employees have resigned from the department since McMullin's lay off, leaving vacant positions, McMullin has not been called back to work. McMullin actively supported the campaign of Mayor Washington.

 Janet Moore, a 50 year old black woman, began her employment in the Mayor's Office of Employment Security on September 28, 1981. Since the commencement of her employment she has served as an Eligibility Specialist, an Eligibility Review Specialist, and an Employability Review Specialist I. Moore had applied for the position of Employability Review Specialist II, but the position was given to a white female. Moore was laid off on December 31, 1991. On July, 1, 1992, Moore was called back to work as a Clerk II in the Police Department. In this capacity she is currently receiving approximately $ 10,000 less per year than she had received while employed as an Employability Review Specialist I. Additionally, Moore claims she is currently being discriminated against on the basis of race as she and other black city employees were not permitted to bid on positions at the Police Department in the new IUU Unit, a unit which is currently comprised of all white employees. According to Moore, these white employees in the IUU Unit perform the same tasks as she and other black employees, but receive a higher wage. Moore supported the campaigns of both Mayor Washington and Mayor Sawyer.

 Fredrick O'Neal, a 43 year old black man, was employed as a Principal Systems Engineer in June of 1988, in the Bureau of Telecommunications, Department of General Services. In August of 1991, O'Neal was transferred to the Department of Fleet Management. On January 1, 1991, O'Neal was demoted to the position of Senior Systems Engineer, resulting in an annual salary decrease of $ 8,400. O'Neal claims that his demotion was related to race as other white employees transferred to Fleet Management were not demoted in job title or salary. O'Neal had applied for the position of Manager of Fleet Management, but was neither interviewed nor considered for the job. The position was eventually filled by a retired white police officer, who did not have an MBA degree as did O'Neal. O'Neal claims that he is treated differently than white professional city employees in that: (1) despite his MBA degree, he receives less pay than many white employees; (2) his telephone does not have access to long distance lines, while his former white subordinates have telephones with access to long distance lines; (3) he does not have an assigned parking space, while his former white subordinates have assigned parking spaces; and (4) he has been forced to move his work area to accommodate other employees, while his former white subordinates have not been required to move their offices or work space. O'Neal further states that Fleet Management has hired or promoted several white employees and that eighteen new service writer positions have been created and filled by relatives and friends of fleet employees. Finally, and particularly troubling, O'Neal alleges that the Department of Fleet Management intentionally engages in discrimination as (i) its Commissioner, William T. Corbett, displays in his office a sign reading "PARKING FOR IRISH ONLY, ALL OTHER WILL BE TOWED AWAY", and (ii) swastikas are displayed throughout the department's office building. O'Neal supported the campaigns of both Mayor Washington and Mayor Sawyer.

 Doris Thompson, a 54 year old black woman, commenced her employment in the Mayor's Office of Employment and Training in 1981, holding the positions of Employability Specialist I and Employee Review Specialist. Thompson was laid off on December 31, 1991, rehired, and then laid off a second time on September 16, 1992. She attributes this action to her race in that she and other black employees within her department were treated differently than white employees in other departments comprised of a majority of white persons. Thompson supported the candidacy of Mayor Washington.

 Crystal White, a 41 year old black woman, commenced her employment with the City in August, 1976. Since then, she has occupied the following positions: student intern and cashier in the Department of Revenue; staff assistant in the Department of Human Services; and Senior Terminal Operator, Accounting Technician I and Accounting Technician II in the Department of Finance. White participated in the campaigns of both Mayor Washington and Mayor Sawyer, and worked in Mayor Sawyer's Office of Contract Compliance in 1989. In 1989, upon the election of Mayor Daley, White was laid off from her position in the Mayor's Office of Contract Compliance for a period of six months and was not permitted to return to her position as an Accounting Technician II in the Department of Finance. On December 31, 1991, White was laid off from city employment, while white employees with less seniority were not affected by the workplace reorganization.

 III. Class Certification *fn1"

 Rule 23 of the Federal Rules of Civil Procedure establishes a two-step procedure to determine if a class action is appropriate. The court must first inquire into whether the class meets the four preliminary requirements of Rule 23(a):

 
(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.

 Additionally, a class action that satisfies all four of the Rule 23(a) requirements must also qualify under one of the three subsections of Rule 23(b). In the instant case, plaintiffs seek certification of the class under Rule 23(b)(2), which provides that a class action is proper if "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole." In the alternative, plaintiffs request certification under Rule 23(b)(3), which provides that a class action is proper if "the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy."

 In evaluating the motion for class certification, the allegations made in support of certification are taken as true, and we do not examine the merits of the case. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78, 94 S. Ct. 2140, 2152-53, 40 L. Ed. 2d 732 (1974); Spencer v. Central States, Southeast and Southwest Areas Pension Fund, 778 F. Supp. 985, 989 (N.D. Ill. 1991); Riordan v. Smith Barney, 113 F.R.D. 60, 62 (N.D. Ill. 1986). The burden of showing that the requirements for class certification have been met rests with the plaintiffs. General Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 161, 102 S. Ct. 2364, 2372, 72 L. Ed. 2d 740 (1982); Trotter v. Klincar, 748 F.2d 1177, 1184 (7th Cir. 1984); Hardin v. Harshbarger 814 F. Supp. 703, 706 (N.D. Ill. 1993); Riordan, 113 F.R.D. at 62.

 A. Numerosity

 Rule 23(a)(1) requires that the proposed class be so numerous that joinder of all members is impracticable. While plaintiffs may not rely on conclusory allegations that joinder is impracticable or on speculation regarding the size of the class, Valentino v. Howlett, 528 F.2d 975, 978 (7th Cir. 1976); Kohn v. Mucia, 776 F. Supp. 348, 352-53 (N.D. Ill. 1991), the complaint need not specify the exact number of persons included in the class. Marcial v. Coronet Ins. Co., 880 F.2d 954, 957 (7th Cir. 1989); Retired Chicago Police Ass'n v. City of Chicago, 141 F.R.D. 477, 484-85 (N.D. Ill. 1992); Patrykus v. Gomilla, 121 F.R.D. 357, 360 (N.D. Ill 1988). Numerosity analysis does not entail thresholds of "magic numbers"; rather, the requisite finding may be supported by common sense assumptions. Patrykus, 121 F.R.D. at 360; Grossman v. Waste Management, Inc., 100 F.R.D. 781, 785 (N.D. Ill. 1984).

 In order to approximate the size of the putative class, plaintiffs rely on a "city disc" provided by the City that sets forth all "off actions" between October, 1991 and May, 1992. Based on this information, plaintiffs claim that at least 1,800 employees qualify as class members. Although it appears that the "city disc" lists personnel actions beyond the scope of the putative class, including deaths, layoffs where employees simply bumped into another position, and seasonal changes, we nevertheless are satisfied the class is so numerous that joinder would be impracticable. To be sure, Exhibit 2 of plaintiff's reply brief indicates that the City in 1991 laid off a total of 527 blacks and 107 hispanics. These numbers alone clearly make joinder impracticable and, as such, the numerosity requirement of Rule 23(a) is satisfied.

 B. Commonality

 Rule 23(a)(2) requires plaintiffs to demonstrate that there is at least one question of law or fact common to the class. In re VMS Sec. Litig., 136 F.R.D. 466, 473 (N.D. Ill. 1991); Patrykus, 121 F.R.D. at 361. "Not all factual or legal questions raised in a lawsuit need be common so long as a single issue is common to all class members. Riordan, 113 F.R.D. at 63 (citing Midwest Community Council, Inc. v. Chicago Park District, 87 F.R.D. 457 (N.D. Ill. 1980)). Thus, class certification cannot be defeated merely because there are some factual variations among the members' grievances. Id. (citing Patterson v. General Motors Corp., 631 F.2d 476 (7th Cir. 1980), cert. denied, 451 U.S. 914, 101 S. Ct. 1988, 68 L. Ed. 2d 304 (1981)). Where a common question of law refers to standardized conduct by defendants toward members of the putative class, a common nucleus of operative fact is typically presented, and the commonality requirement is usually met. Patrykus, 121 F.R.D. at 361; Franklin v. City of Chicago, 102 F.R.D. 944, 949 (N.D. Ill. 1984). In such cases, differences in individual cases regarding treatment or damages does not defeat commonality. Patrykus, 121 F.R.D. at 361; Franklin, 102 F.R.D. at 950.

 Allegations of race discrimination significantly complicate traditional class certification analysis, as "racial discrimination is by definition class discrimination." General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 157, 102 S. Ct. 2364, 2370, 72 L. Ed. 2d 740 (1982). Nonetheless, it is settled law that a person of a given racial group may not represent other members of the group merely because they were all subjected to the same broad type of discrimination by a common employer. In Falcon, the Court confronted the following issue: "whether respondent Falcon, who complained that petitioner did not promote him because he is a Mexican-American, was properly permitted to maintain a class action on behalf of Mexican-American applicants for employment whom petitioner did not hire." Id. at 149, 102 S. Ct. at 2366. In rejecting the Fifth Circuit's across-the-board rule whereby persons complaining of one employment practice may represent others allegedly aggrieved by a different practice as long as the differing practices were motivated by the same policy, i.e., race discrimination, the Court stated:

 
allegations that [racial] discrimination has occurred neither determines whether a class action may be maintained in accordance with Rule 23 nor defines the class that may be certified. Conceptually, there is a wide gap between (a) an individual's claim that he has been denied a promotion on discriminatory grounds, and his otherwise unsupported allegation that the company has a policy of discrimination, and (b) the existence of a class of persons who have suffered the same injury as that individual, such that the individual's claim and the class claims will share common questions of law or fact.

 Id. at 157, 102 S. Ct. at 2370. Rather, "a Title VII class action, like any other class action, may only be certified if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied." Id. at 161, 102 S. Ct. at 2372. In holding that Falcon could not maintain the proposed class action, the Court distinguished the circumstance where an aggrieved private plaintiff happens to be of the same national origin as other persons allegedly discriminated against by a common employer, from cases where the plaintiff challenges a standardized employment practice:

 
If petitioner used a biased testing procedure to evaluate both applicants for employment and incumbent employees, a class action on behalf of every applicant or employee who might have been prejudiced by the test clearly would satisfy the commonality and typicality requirements of Rule 23(a). Significant proof that an employer operated under a general policy of discrimination conceivably could justify a class of both applicants and employees if the discrimination manifested itself in hiring and promotion practices in the same general fashion, such as through entirely subjective decisionmaking processes. In this regard it is noteworthy that Title VII prohibits discriminatory employment practices, not an abstract policy of discrimination.

 Id. at 159 n.15, 102 S. Ct. at 2371 n.15 (emphasis in original).

 Likewise, the Seventh Circuit in Patterson v. General Motors Corp., 631 F.2d 476, 480 (7th Cir. 1980), cert. denied, 451 U.S. 914, 101 S. Ct. 1988, 68 L. Ed. 2d 304 (1981), rejected the contention that "a class action is appropriate 'in all instances [in which] the discrimination in employment was racial, even though the discrimination may have been manifested in a variety of practices affecting different class members in different ways at different times.'" Patterson alleged that its employer, General Motors, had discriminated against him by replacing him with a white worker of lesser seniority and experience, by failing to promote him, by maintaining essentially an all-white department, and by harassing him in retaliation for the filing of various complaints with state and federal agencies. Id. at 478-79. Against this backdrop of conduct directed toward Patterson as an individual, Patterson sought to represent a class of minority persons employed, or might be employed, at designated General Motors plants. Id. In finding that Patterson had failed to meet the commonality requirement of Rule 23(a)(2), the Seventh Circuit stated:

 
The issue of whether a particular job assignment or promotion denial was discriminatory would depend upon any number of factors peculiar to the individuals competing for the vacancy, including relative seniority, qualifications, availability for work and desire to perform the job. Each disciplinary action would present a different set of facts for each employee. "In other words, the plaintiff's claims do not relate to general policies or practices which are allegedly discriminatory, but rather to individualized ...

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