The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge
This matter comes before the Court on Defendant City of Springfield, Illinois' (City) Motion for Summary Judgment (d/e 19). The City moves for summary judgment on all claims set forth in the Complaint (d/e 1). In Counts I, III, and V, Plaintiffs Kevin Groesch, Greg Shaffer, and Scott Allin respectively allege discriminatory treatment in employment based on their race, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. In Counts II, IV, and VI, Plaintiffs Groesch, Shaffer and Allin, respectively, claim a violation of 42 U.S.C. § 1983, based on allegations that they were treated less favorably than a similarly situated African-American colleague in violation of their right to equal protection under the Fourteenth Amendment to the United States Constitution. The City now moves for summary judgment. For the reasons set forth below, the City's Motion for Summary Judgment is ALLOWED in part and DENIED in part.
Plaintiffs Kevin Groesch, Greg Shaffer, and Scott Allin are patrol officers currently employed by the City's Police Department. Plaintiffs are all Caucasian males. Groesch's employment with the City began in June of 1981. Sometime in December 1988, Groesch made requests to take a six-month leave of absence and later a three-month leave of absence. Those requests were denied; Groesch was granted a sixty-day leave of absence, however. After the expiration of the leave, Groesch did not return to the City's employ, but left the City's employ in good standing, accepting a position at the Illinois Department of Corrections as an investigator. Groesch states in his Affidavit that, shortly following his resignation from the Police Department, he wished to return to the City's employ. In that effort, between 1989 and September of 1996, he submitted applications and tested to be placed on an eligibility list created by the Police Department to hire new officers.*fn1 Plaintiffs' Appendix to the Memorandum in Opposition to Defendant's Motion for Summary Judgment (d/e 22), Attachment 1, Affidavit of Kevin Groesch (Groesch Aff.), ¶ 7.
On September 10, 1996, approximately 8 years later, Groesch returned to the City's employ as a patrol officer. When Groesch was rehired by the City, the City did not give him any credit for his previous years of service for purposes of calculating his seniority, vacation and sick pay benefits.*fn2 Groesch was considered a new hire, with his seniority being determined as if he had newly joined the Police Department.
Shaffer and Allin also have similar employment patterns. Shaffer's employment with the City began in January 1980 as a police patrol officer. In July 1987, Shaffer left the City's employ in good standing to pursue other career opportunities. At the time he left, Shaffer requested a leave of absence, but his request was denied. On July 6, 1993, however, he returned to the City's employ as a patrol officer. When Shaffer returned to the City's employ, he was considered a new hire and was not given any credit for his prior years of service for purposes of calculating his seniority, vacation and sick pay benefits.
Allin's employment with the City began on January 7, 1980 as a police patrol officer. On November 22, 1986, he left the City's employ in good standing to form his own business. At the time he left, Allin requested a leave of absence, but was denied. Almost six months after he left the Police Department, Allin was interested in returning to the City's employ.
In that effort, he submitted an application for employment, underwent the necessary testing, and was placed on a police patrol officer eligibility roster, as instructed by Karola Baringer, then Personnel Director of the City and also an official of the Springfield Civil Service Commission. On January 9, 1989, Allin was rehired from the eligibility roster as a police patrol officer.
Once Allin returned to the City's employ, he became concerned about not receiving credit for his prior years of service. He expressed his concerns to Rick Walton, then Deputy Chief of Operation, who informed him that once his probationary period was completed he would be restored his earlier years of service. Allin filed a grievance with the Police Patrol Officer Union, Policemen's Benevolent and Protective Association (PBPA), Unit 5, because the City refused to credit him for his earlier years of service with the Police Department following the completion of his probationary period. The City opposed the grievance. Allin's grievance was submitted to arbitration, but the City again opposed. By a decision dated January 24, 1991, the arbitrator ruled against Allin, finding that he was not entitled to credit for his earlier years of service, from 1980 through 1986, for purposes of calculating his seniority, vacation and sick pay benefits. Plaintiffs' Appendix to the Memorandum in Opposition to Defendant's Motion for Summary Judgment, Ex. A to Attachment 2, Report and Decision of Arbitration.
During the relevant time period at issue in this case, the City's Police Department was actively trying to recruit African-Americans and other minority groups. In so doing, the City worked closely with National Organization of Black Law Enforcement (NOBLE) and the Illinois State Police. Plaintiffs' Appendix to the Memorandum in Opposition to Defendant's Motion for Summary Judgment, Attachment 3, Deposition of John Harris (Harris Dep.) at 19. From October 1995 to June 2003, John Harris was Chief of Police of Springfield, Illinois Police Department. Id. at 7. His duties as the Chief of Police included budgeting, staffing, meetings, managing, directing and controlling. As the Chief of Police, Harris reported directly to the Mayor. Id. at 8. Chief Harris also played a limited role in hiring and recruiting new police officers. Id. at 9. Chief Harris testified in his deposition that the Mayor had the ultimate authority in implementing the policies of the Police Department and in hiring and recruiting police officers. Id. at 8, 11. Chief Harris admitted in his deposition that the actual hiring of police officers and the process leading to the hiring of police officers are governed by the Springfield Civil Service Commission. Id. at 11.
According to the City's former Director of the Department of Human Resources Gina Larkin, the City worked closely with three organizations to increase its minority recruitment: the local chapter of the NAACP, the Springfield Ministerial Alliance, and the Springfield Urban League.*fn3 Larkin Dep. at 14-15. The Human Resources Department maintained contact with the local organizations and used such contacts to recruit more minorities; it also advertised in newspapers that had a high minority readership to attract minority candidates. Id. at 15. Larkin testified that the City's practice of recruiting more minorities was in place before she started her job with the City in May of 1995. Id. at 16. Donald Kliment, the present Chief of the Police Department, testified that in 1999 and 2000, and in earlier years, the City sought to actively recruit minority police officers.*fn4 Id. at 28.
Plaintiffs point to City patrol officer Donald Schluter as an individual who was treated more favorably by the City than they. Schluter is an African-American male. Schluter began employment with the City on April 4, 1994, but left in good standing on November 12, 1999. On October 29, 1999, Schluter informed the Police Department that he was voluntarily terminating employment with the City effective November 12, 1999. On November 9, 1999, Chief Harris received an interdepartmental memorandum from Schluter requesting a leave of absence. Schluter made the request three days before his effective date of resignation because, in the event he changed his mind, he wished to return to the City's employ. Schluter's request was denied.
Schluter was not eligible for a leave of absence because of his intention to work for a for-profit entity.*fn5 Upon being informed of the denial, Schluter resigned from the Police Department to work for Norfolk Southern Railroad in St. Louis, Missouri, as a conductor. Once Schluter submitted his resignation papers, his resignation became irrevocable according to the City ordinance. See Springfield City Code § 36.60. After three months of working as a conductor, Schluter wished to return to the Police Department and so he sent a letter to Chief Harris, on January 31, 2000, expressing his interest to return. Schluter noted in the letter that "with the department's lack of minority recruitment, [he] could fill a void without the department having to spend additional funds in training someone." Plaintiffs' Appendix to the Memorandum in Opposition to Defendant's Motion for Summary Judgment, Attachment 12, Schluter letter dated January 31, 2000.
By a letter dated February 14, 2000, Chief Harris informed Schluter that he had received the letter and that he would look into his request to return to the Police Department. Chief Harris further stated in the letter that as soon as he heard from the Human Resources Department, he would contact him. Plaintiffs' Appendix to the Memorandum in Opposition to Defendant's Motion for Summary Judgment, Attachment 15, Harris letter dated February 14, 2000. At the time Schluter made his request to return, Chief Harris was aware of Schluter's race. Chief Harris believed that Schluter was a qualified candidate and so wanted him to return as there was also a need for racial diversity on the Police Department. In assisting Schluter's return to the City's Police Department, Chief Harris considered Schluter's race. Plaintiffs' Appendix to the Memorandum in Opposition to Defendant's Motion for Summary Judgment, Attachment 17, Deposition of John Harris taken in relation to Springfield Policemen's Benevolent and Protective Association, Unit No. 5 v. City of Springfield, et al., Case No. 00 MR 180, pending before the Circuit Court of Sangamon County at 26. Chief Harris believed that, in order to return Schluter to the City's employ, an action from the Springfield City Council was necessary. Harris Dep. at 40. In general, if an action from the City Council was required, Chief Harris would make a request to the Mayor's office. The Mayor would then make recommendations to the City Council. Id. at 42-43.
At the time Schluter made his request to return to the City's employ, the City was in the testing phase to create an eligibility roster. Kliment Dep. at 18-19. Chief Harris believes that he discussed the Schluter situation with Frank McNeil, an alderman of Ward 2 of the City of Springfield and a member of the Springfield City Council. Harris Dep. at 45. McNeil testified in his deposition that Harris would generally talk to him about minority recruiting issues. Plaintiffs' Appendix to the Memorandum in Opposition to Defendant's Motion for Summary Judgment, Attachment 7, Deposition of Frank McNeil (McNeil Dep.) at 6. McNeil testified that he did not recall taking a position on Schluter's salary, seniority or the method of calculating his sick and vacation pay upon his return to work. Id. at 39-40. McNeil testified that one of the reasons he considered in supporting Schluter's return was the fact that he was interested in having qualified minorities on the Police Department. Id. at 41. McNeil further testified that members of the City Council were also concerned about the lack of diversity in the Police Department. Id. at 23. McNeil testified that he was aware that Schluter had a good work record while he was on the Police Department and that he was a qualified officer. Id. McNeil admitted that, at the time the passage of an ordinance to allow Schluter's return was under consideration, Chief Harris could not have granted a retroactive leave of absence without the City Council enacting an ordinance. Id. at 43.
On March 28, 2000, the City passed Ordinance 198.3.00 (the Schluter Ordinance) which enabled Schluter to return as a City patrol officer with his previous level of seniority. McNeil sponsored the passage of the Schluter Ordinance. McNeil testified that the Schulter Ordinance was not a change in City policy because the Ordinance did not, on its face, amend § 36.58 (a)(4) of the Springfield City Code, which provides that "[l]eaves of absence shall not be granted for the purpose of allowing an employee to work for a for-profit entity." Springfield City Code § 36.58(a)(4); McNeil Dep. at 30-31. McNeil further testified as follows:
Q: Okay. All right. I am curious and as I read the four corners of the [Schluter] ordinance and specifically Sections 1, 2, 3 and 4 of the ordinance that appear on page 2 of the ordinance only applies [sic] to Don Schluter and his efforts to come back to the city.
A: I would say that's correct.
Q: And if a month later there was another police officer similarly situated to Don Schluter who also wanted to come back the ordinance does not address that situation.
A: I would say no, but I would say I think the way we looked at it would have to be a case by case basis.
A: And I think that as I recall and, you know, this is still my fuzzy recollection, each case had to be handled on its own merits.
McNeil Dep. at 50-51. The face of the Schluter Ordinance recited in part that rehiring of Schluter promoted diversity in the ranks of the Springfield Police Department, which was in the public interest.*fn6
The Schluter Ordinance applied solely to Schluter and no one else, meaning no other individuals who wished to return to the City's employ could return and be granted a retroactive leave of absence under the Ordinance, unless a similar and separate ordinance was passed providing for such a leave. Chief Harris testified that he was not involved in the decision to enact an ordinance that applied only to Schluter. Harris Dep. at 47. The Schluter Ordinance authorized Schluter to be reinstated to his previous rank of patrol officer, without having to go through any testing process or be placed on an eligibility roster, which is generally required. The only loss of seniority Schluter had was for the four-month period he was gone. Upon his return, Schluter received credit for his prior years of service. Plaintiffs allege that they ". . . received wages and benefits calculated under a method which provides each of them less favorable treatment than that provided to Donald A. Schlueter [sic]." Complaint (d/e 1), ¶ 14.
Shortly following the passage of the Schluter Ordinance, the Springfield PBPA, Unit 5, filed a lawsuit against both the City and Schluter challenging the enactment of the Schluter Ordinance. The Court takes judicial notice of the following: (1) the lawsuit filed in the Circuit Court of Sangamon County, Illinois, Springfield Policemen's Benevolent and Protective Association, Unit 5 v. City of Springfield, Illinois, Case No. 00 MR 180; (2) the August 17, 2001, Order entered by the Circuit Court of Sangamon County; and (3) the April 26, 2002, Order issued by the Illinois Appellate Court.*fn7 See Toney v. Burris, 829 F.2d 622, 626-27 (7th Cir. 1987) ("Federal courts must take judicial notice of the statutory and common law of any state of the union without pleading or proof. This is especially true of the laws of the state in which the district court sits. The rule applies with equal force to matters of public record such as state statutes, city charters, and city ordinances.") (internal quotations and citations omitted).
According to the Plaintiffs, they wanted to see the progress of the lawsuit initiated by the Union before they decided to file their own lawsuit. On December 11, 2002, Plaintiffs formally sent a letter to Chief Harris expressing their interest in being restored their prior years of service as the City had done for Schluter. Plaintiffs' Appendix to the Memorandum in Opposition to Defendant's Motion for Summary Judgment, Attachments 13 & 14, Groesch, Shaffer and Allin Memorandum dated December 11, 2002.*fn8
In their Memorandum, the Plaintiffs requested that they be treated the same way as the City had treated Schluter in crediting him for his earlier years of service with the Police Department. In short, Plaintiffs were requesting credit for their prior years of service, which would require an action by the Springfield City Council. Chief Harris did not follow through on their requests. When asked what he thought distinguished Schluter's situation from the situations of Groesch, Allin and Shaffer, Chief Harris testified as follows:
Q: Okay. In your mind is there a difference between Tony Schluter's circumstances and the circumstances of ...