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Chicago Police Sergeants v. City of Chicago

July 6, 2011

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

On July 24, 2008, Plaintiffs Chicago Police Sergeants Association (the "Association"), Sergeant Lisa Price ("Price"), and Sergeant Richard Wiser ("Wiser") (collectively "Plaintiffs") filed their 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. On September 3, 2010, the Court granted Defendant's motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) and dismissed Plaintiffs' complaint without prejudice. See Chicago Police Sergeants Assoc. v. City of Chicago, 2010 WL 3526486, at *7 (N.D. Ill. Sept. 3, 2010). The Court allowed Plaintiffs to file an amended complaint, which they did on November 3, 2010 [135]. Currently before the Court is Defendant's motion [139] to dismiss Plaintiffs' First Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons stated below, the Court concludes that Plaintiffs' First Amended Complaint [135] fails to properly state a claim arising under the Shakman Decree. Accordingly, Defendant's motion to dismiss [139] is granted. However, as explained below, because Plaintiffs' claims do not appear to be completely time barred and because Plaintiffs may be able to correct the other flaws in their complaint, the dismissal is not with prejudice. Plaintiffs are given 21 days from the date of this order in which to file an amended complaint if they believe that they can cure the pleading deficiencies discussed below. This will be Plaintiffs' final opportunity-any subsequent dismissal will be with prejudice.

I. Factual Background*fn1

In July 2006, the City announced that it would be conducting an examination for the rank of lieutenant (the "Lieutenant's Exam"). The examination was comprised of a written and an oral portion. In order to take the oral portion, an applicant first had to pass the written portion, which both Price and Wiser did. Wiser and Price took the oral portion on January 6, 2007 (the "January test"), but were told that there were unspecified problems with the administration of the oral exam and that 51 of the 660 test results might not have been properly recorded. On May 1, 2007, the City announced that it would readminister the oral portion on June 23, 2007 (the "June re-test") using the same questions that had appeared on the January test, and that it would allow anyone who had taken the January test the option of taking the June re-test or resting on his or her January test performance. Based on the January test and the June re-test, the City created a promotion list from which the City made all promotions.

On July 24, 2008, Plaintiffs filed their Complaint [1], alleging that the City violated the Shakman Decree because the City re-administered the oral portion of the Lieutenant's Exam in June using the same questions that had appeared on the January test. Comp. ¶ 32; see also FAC ¶¶ 29-31. (Plaintiffs alleged that the whole point of the oral exam was to test applicants' ability to think on their feet, and re-using the same questions from the January test completely vitiated that purpose). Plaintiffs further alleged that after the January test, but before the June re-test, certain applicants -- but not Price and Wiser -- 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. Compl. ¶ 33; see also FAC ¶ 32. Additionally, Plaintiffs alleged that Price and Wiser could not make an informed decision as to whether they should sit for the June re-test or rest on their prior score because the City had not evaluated or graded the January test at the time that they were required to decide if they should sit for the June re-test. Compl. ¶ 26; see also FAC ¶ 26.

On September 3, 2010, the Court dismissed Plaintiffs' Shakman claim without prejudice because "[t]here simply [were] no factual allegations in the complaint sufficient to raise above the 'speculative level' any possibility that the City's conduct regarding the June re-test was politically motivated or to put the City on notice of the nature of any Shakman-related claims against it." Chicago Police Sergeants Assoc., 2010 WL 3526486 at *5. Nevertheless, the Court allowed Plaintiffs to file an amended complaint if they believed that they could overcome the flaws identified in the order. Id. at *6. The Court cautioned that should Plaintiffs choose to file an amended complaint, "Plaintiffs must plead sufficient factual allegations showing how City decision makers' conduct regarding the June re-test was politically motivated." Id.

On November 3, 2010, Plaintiffs filed their First Amended Complaint [135]. Plaintiffs attempted to cure the pleading defects in their Shakman claim by adding five paragraphs under the heading "Count I- Shakman Decree." They read in their entirety as follows:

43. Furthermore, upon information and belief, the City administered the June 23rd Re-test to specifically advance its politically-related causes and promote certain individuals with political connections.

44. Upon information and belief, certain individuals that the City wanted promoted because of their political affiliations, had not passed the January 6th Oral Exam. Therefore, the City re-administered the test to give those certain individuals another opportunity to make the Promotional List.

45. For example, Anthony Carothers took the June 23rd Retest and was immediately placed on the Promotional List. Furthermore, Anthony Carothers was part of the first group of individuals from the Promotional List that was promoted to Lieutenant.

46. At the time of Anthony Carothers' promotion, his brother, Ald. Issac "Ike" Carothers (29th Ward) was chairman of the City Council's Police and Fire Committee. The promotion of Anthony Carothers was ushered forward for solely political reasons and, specifically, because his brother was the chairman of the City Council's Police and Fire Committee.

47. Accordingly, the City's administration of the June 23rd Test violated the Shakman Decree by attempting to advance a specific and politically-related cause.

II. Legal Standard

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of a complaint, not the merits of the case. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). In ruling on a motion to dismiss pursuant to Rule 12 (b)(6), courts "must accept as true all the plaintiff's well-pleaded factual allegations and the inferences reasonably ...


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