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Chicago Police Sergeants Association v. City of Chicago

September 3, 2010

CHICAGO POLICE SERGEANTS ASSOCIATION, SERGEANT LISA PRICE, AND SERGEANT RICHARD WISER, PLAINTIFFS,
v.
CITY OF CHICAGO, DEFENDANT.



The opinion of the court was delivered by: Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

In this case, Plaintiffs Chicago Police Sergeants Association ("the Association"), Sergeant Lisa Price ("Price"), and Sergeant Richard Wiser ("Wiser") (collectively "Plaintiffs") filed an eight-count complaint [1] against Defendant City of Chicago ("the City"). Plaintiffs' claims are based on the City's promotional examination for the rank of police lieutenant, and the City's use of a re-test in promoting applicants after unspecified administration problems hindered the first test. Currently before the Court is Defendant's motion to dismiss the complaint for lack of standing pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure and for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure [101].

For the reasons stated below, the Court finds that the complaint fails to properly plead a claim arising under the Shakman Decrees. Accordingly, Count I of the complaint (styled "SHAKMAN DECREE") must be dismissed pursuant to Rule 12(c). Because Count I is the only remaining count over which the Court has original jurisdiction, the other state law counts are subject to dismissal pursuant to the "usual practice" in the Seventh Circuit of "dismiss[ing] without prejudice state supplemental claims whenever all federal claims have been dismissed prior to trial." Groce v. Eli Lilly & Co., 193 F.3d 496, 501 (7th Cir. 1999); see also 28 U.S.C. § 1367(c)(3). However, Plaintiffs are given 21 days from the date of this order in which to file an amended complaint if they believe that the pleading deficiencies discussed below can be cured.*fn1

I. Factual Background*fn2

The Chicago Police Sergeants Association is an Illinois not-for-profit corporation. Price and Wiser both hold the rank of Sergeant with the Chicago Police Department. (Compl. ¶¶ 6-8.)

In July 2006, the City announced that it would be conducting an examination for the rank of lieutenant, comprising written and oral portions. In order to take the oral portion, an applicant first had to pass the written portion, which both Price and Wiser did. (Id. ¶¶ 16-17.) The oral portion was made up of seven different scenarios. (Id. ¶ 21.) These scenarios were designed to test the applicants' immediate responses to particular situations and determine whether the applicants possessed certain desirable traits in a lieutenant (such as eloquence, empathy, and the ability to think on one's feet). (Id. ¶¶ 24, 30.) For the first scenario, applicants were given twenty-minutes to prepare a response, but the final six scenarios were videotaped recordings. Each applicant would view a clip and then had ninety-seconds to give a response. (Id. ¶¶ 22-23.)

Wiser and Price took the oral portion on January 6, 2007 ("the January exam"), but were told that there were unspecified "problems with the administration" of 51 of the 660 tests and those results might not have been properly recorded. (Id. ¶¶ 17-18, 28, 36.) The City responded to the situation by allowing anyone to take a re-test on June 23, 2007 ("the June re-test"), or to rest on his or her January exam performance. (Id. ¶ 25.) The June re-test consisted of the same questions that had appeared on the January exam (id.), which Plaintiffs allege essentially turned an exercise in quick thinking into an effort at memorization (id. ¶¶ 32, 37). Moreover, after the January exam, but before the June re-test, certain applicants -- but not Price and Wiser -- are alleged to have had access to "senior command personnel" or "other supervisors" who allowed them to review the test questions and provided them with information about the proper format and order of answers. (Id. ¶ 33.) Plaintiff argues that because the test procedures did not accurately measure the skills needed to be a lieutenant, the test violated the City's Personnel Rules. (Id. ¶ 32.) The relevant rule provides that "the test shall be held in such ways and under such conditions as to prevent fraud or other misconduct." (Id. ¶ 14 (quoting Rule 9, § 4 of the City's Personnel Rules).)

In addition to not having received guidance from higher-ups, Price, Wiser, and other applicants, had made travel and furlough plans at the time of the June re-test. Other applicants could not take the re-test because they could not get the day off. (Id. ¶ 35.) Furthermore, the City had not evaluated or graded the January 6, 2007 oral exam at the time the sergeants were required to decide if they should sit for the retest. Accordingly, sergeants could not make an informed decision as to whether they should sit for the retest or rest on their prior score. (Id. ¶ 26.)

Count I of the complaint alleges that the City violated the "Shakman Decree." Count III seeks from the Court a writ of mandamus to compel the City to, inter alia, discard the 2007 round of testing, discontinue using the 2007 tests as a basis for promotions, and establish a new test to be used in examining applicants for lieutenant. Count IV seeks a permanent injunction which overlaps to a large degree with the requested writ, while Count V seeks a temporary injunction. Count VII alleges that the City made fraudulent misrepresentations concerning its promotion practices. Count VIII seeks declaratory relief, specifically a ruling from the Court that the City's practices are "unjust and/or violative of [the Association's members'] rights" and holding the City in contempt for violating the Shakman Decree.*fn3

II. Legal Standard

As an initial matter, Plaintiffs oppose Defendant's motion on the ground that a defendant cannot argue in a Rule 12(c) motion that a complaint fails to properly plead a cause of action. Pl. Resp. at 11-12. According to Plaintiffs, "where the litigant is asserting that there has been a failure to 'state a claim upon which relief can be granted,'" such arguments are only "properly asserted in a Fed. R. Civ. P. 12(b)(6) Motion to Dismiss." Id. at 12. Because a 12(b)(6) motion would be untimely in this case (as Defendant has answered the complaint), Plaintiffs contend that Defendant's "12(c) motion" should be denied. Unfortunately for Plaintiffs, their understanding of Rule 12(c) is wholly incorrect.

A Rule 12(c) motion for judgment on the pleadings permits a party to move for judgment after both the plaintiff's complaint and the defendant's answer have been filed. Fed. R. Civ. P. 12(c); Brunt v. Serv. Employees Int'l Union, 284 F.3d 715, 718 (7th Cir. 2002). A court should grant a Rule 12(c) motion only when it appears beyond a doubt that the plaintiff cannot prove any facts to support a claim for relief and the moving party demonstrates that there are no material issues of fact to be resolved. Id. at 718-719. Rule 12(c) motions are reviewed under the same standard as Rule 12(b)(6) motions to dismiss. Piscotta v. Old Nat'l Bancorp, 499 F.3d 629, 633 (7th Cir. 2007). In considering a motion for judgment on the pleadings, courts should consider the "pleadings," which include the complaint, answer, and any written instruments attached as exhibits. In re Fultz, 232 B.R. 709, 717-719 (Bankr. N.D. Ill. 1999). Of course, courts also may consider the motion itself and the response in opposition thereto. Id.

Federal Rule of Civil Procedure 12(h)(2) specifically allows a party to argue that the plaintiff has "fail[ed] to state a claim upon which relief can be granted" through the vehicle of a motion under Rule 12(c). Recognizing this, the Supreme Court has noted that "Under Rule 12(h)(2), [the objection that a complaint fails to state a claim upon which relief can be granted] endures up to, but not beyond, trial on the merits: 'A defense of failure to state a claim upon which relief can be granted ... may be made in any pleading ... or by motion for judgment on the pleadings, or at the trial on the merits.'" Arbaugh v. Y&H Corp., 546 U.S. 500, 507 (2006) (ellipsis in original) citing Kontrick v. Ryan, 540 U.S. 443, 445-46 (2004); see also Thomason v. Nachtrieb, 888 F.2d 1202, 1204 (7th Cir. 1989) ("Under FRCP 12(c) defendants essentially raised a proper FRCP 12(b)(6) motion by challenging the sufficiency of the complaint as allowed under Rule 12(h)(2)"). Accordingly, the Seventh Circuit has held that held that "a 12(b)(6) motion filed after an answer has been filed is to be treated as a 12(c) motion for judgment on the pleadings and can be evaluated under the same standard as a Rule 12(b)(6) motion." McMillan v. Collection Professionals Inc., 455 F.3d 754, 757 n. 1 (7th Cir. 2006) (citing Lanigan v. Vill. of East Hazel Crest, Illinois, 110 F.3d 467, 470 n. 2 (7th Cir. 1997)).*fn4

Because Rule 12(c) motions are reviewed under the same standard as Rule 12(b)(6) motions to dismiss, the Court will briefly summarize that more familiar standard. A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the complaint, not the merits of the case.See Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). To survive a Rule 12(b)(6) motion to dismiss, the complaint first must comply with Rule 8(a) by providing "a short and plain statement of the claim showing that the pleader is entitled to relief" (Fed. R. Civ. P. 8(a)(2)), such that the defendant is given "fair notice of what the * * * claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Second, the factual allegations in the complaint must be sufficient to raise the possibility of relief above the "speculative level," assuming that all of the allegations in the complaint are true. E.E.O.C. v. Concentra Health Svcs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 569 n. 14). "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Twombly, 550 U.S. at 546. "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief ...


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