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10/30/97 WILLIAM MAHONEY v. CITY CHICAGO

October 30, 1997

WILLIAM MAHONEY, JOHN J. O'BRIEN, THOMAS DEACY, TIMOTHY HAYES, CARL R. HOPKINS, DOUGLAS O. CARBOL, RICHARD W. BUESCHEL, GERALD HAYES, JAMES M. WULFF, NORBERT PERKINS, JOHN J. KELLY, LAWRENCE R. WEISS, WILLIAM W. SWEENEY, STANLEY J. PRYSOK, MICHAEL WALSH, HILERY OSHAUGHNESSY, RICHARD E. OLSON, JAMES M. NOLAN, RUSSELL D. COLLINS, DONALD S. OLSEN, DENNIS W. NOVOTNY, THOMAS P. BROWN, DANIEL E. REARDON, DANIEL DAHL, JOHN BJORVIK, DONALD JURCAK AND MICHAEL J. WALSH, PLAINTIFFS-APPELLANTS,
v.
CITY OF CHICAGO, RAYMOND OROZCO, OFFICIALLY, GLENN CARR, OFFICIALLY, DEFENDANTS-APPELLEES.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE SUSAN ZWICK, JUDGE PRESIDING.

Released for Publication December 5, 1997.

Presiding Justice Wolfson delivered the opinion of the court. McNAMARA and Cerda, JJ., concur.

The opinion of the court was delivered by: Wolfson

PRESIDING JUSTICE WOLFSON delivered the opinion of the court:

Can Chicago firefighters who are members of the Fire Fighter's Union bring suit, as individuals, against the City for claimed irregularities in the City's method of promoting? Our answer is no, not under the circumstances of this case.

BACKGROUND

In compliance with affirmative action provisions within the collective bargaining agreement between the Chicago Fire Fighter's Union, Local No. 2 (the Union) and the City of Chicago (City), minority firefighters were promoted to the position of lieutenant over non-minority firefighters who scored higher on the 1979 promotional exam. In 1987, a new promotional exam was given and a new eligibility list generated. The 1979 list was retired.

In March 1988, William Mahoney, whose name was next on the 1979 eligibility list, filed a grievance through the Union according to the procedures outlined in the collective bargaining agreement with the City. The Union then joined Mahoney's grievance with a class grievance against the City on behalf of the remaining non-minority firefighters on the 1979 eligibility list. The Union requested the City fill vacancies for the position of lieutenant using the 1979 list until it was exhausted, before using the 1987 eligibility list. The City denied the grievance. Arbitration was requested, but never pursued by the Union. The grievances never were resolved.

In December 1991, 32 non-minority firefighters, including Mahoney, filed a four-count complaint against the City, alleging the promotion of minority firefighters in compliance with the Albrecht Consent Decree *fn1 violated their equal protection and due process rights, and breached City personnel laws and the collective bargaining agreement. In May 1993, the complaint was dismissed in part and leave was granted plaintiffs to file an amended complaint.

In June 1993, 27 non-minority Chicago firefighters, including Mahoney, who took and passed the 1979 lieutenant's promotional exam, filed an amended complaint against the City of Chicago in the circuit court of Cook County. They alleged the City's failure to fill lieutenant position vacancies by selecting candidates in strict rank order from the eligibility list generated from the 1979 lieutenant's promotional exam: (1) violated their constitutional right to equal protection, (2) resulted in a taking of a property interest without due process, (3) violated City personnel rules, and (4) breached an implied contract based on the City's personnel rules. Plaintiffs also contended the City promoted unqualified minority candidates who failed the promotional test by more than one standard deviation of the mean score for minority candidates (as set forth in the Albrecht Consent Decree), and that the 1979 list should not have been retired until the non-minority candidates with a passing grade who remained on the 1979 list received promotions. Plaintiffs sought compensatory damages of $125,000 for each plaintiff, an injunction requiring the City to promote each plaintiff to the rank of lieutenant, retroactive pay and benefits, and attorney fees and costs.

The equal protection claim was dismissed and that ruling is not being challenged. As to the other three counts, the trial court granted summary judgment in favor of the City. The court found all plaintiffs, other than Mahoney, had failed to exhaust their remedies under the collective bargaining agreement because they had not filed an individual grievance with the Union. As to Mahoney, the court found the Union's failure to proceed to arbitration did not preclude a finding that Mahoney had exhausted his remedies under the collective bargaining agreement.

Nonetheless, the court found Mahoney's claim was collaterally estopped by the arbitration decision issued in the so-called "Benn case". See Chicago Fire Fighters Union, Local No. 2 v. City of Chicago, Arbitration Nos. 51-390-0531-86-B and 51-390-0161-87-B, issued May 23, 1988, by Arbitrator Edwin H. Benn. In that case the arbitrator determined it was not a violation of the collective bargaining agreement for the City to pass over non-minority candidates who scored higher grades on the 1979 captain's and engineer's promotional exams to promote minority candidates who scored below the "passing grade" of 70. The arbitrator also ruled that the City could retire the 1979 eligibility list for the position of engineer and begin use of the 1986 promotional eligibility list without first promoting all eligible candidates passed over on the 1979 eligibility list.

Plaintiffs appeal the summary judgment order ...


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