Bishop v. Gainer, PLAINTIFFS-APPELLANTS

• Citation: 272 F.3d 1009
• Decision Date: 05 December 2001
• Docket Number: Nos. 98-2172,98-2375,PLAINTIFFS-APPELLANTS,DEFENDANTS-APPELLEES,s. 98-2172
• Parties: (7th Cir. 2001) ANTHONY BISHOP, JEFFREY D. HANFORD, STEVEN J. SWEENEY, LESTER G. ROBERT, DALE G. VOLLE, JERRY MEYERS, OWEN REEVES, AND AARON BOOKER,, v. TERRANCE W. GAINER, HARRY ORR, JOHN REDNOUR, DAVID P. SCHIPPERS, RICHARD T. MITCHELL, NANCY BEASLEY, FRED E. INBAU, JAMES E. SEIBER, JAMES REDLICH, AND STATE OF ILLINOIS,, to 98-2379, 98-2381, 00-2893
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1009

272 F.3d 1009 (7th Cir. 2001)

ANTHONY BISHOP, JEFFREY D. HANFORD, STEVEN J. SWEENEY, LESTER G. ROBERT, DALE G. VOLLE, JERRY MEYERS, OWEN REEVES, AND AARON BOOKER, PLAINTIFFS-APPELLANTS, v. TERRANCE W. GAINER, HARRY ORR, JOHN REDNOUR, DAVID P. SCHIPPERS, RICHARD T. MITCHELL, NANCY BEASLEY, FRED E. INBAU, JAMES E. SEIBER, JAMES REDLICH, AND STATE OF ILLINOIS, DEFENDANTS-APPELLEES.

Nos. 98-2172, 98-2375, to 98-2379, 98-2381, 00-2893

United States Court of Appeals Seventh Circuit

Argued September 6, 2001

Decided December 05, 2001

Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 92 C 3293--Harry D. Leinenweber, Judge. [Copyrighted Material Omitted]

Before Coffey, Kanne, and Evans, Circuit Judges.

Terence T. Evans, Circuit Judge.

Filed in the district court in 1992, this case precipitated sweeping changes in the hiring and promotion policies of the Illinois State Police. So it is somewhat surprising that the appeal before us today is brought, not by the ISP, but by some of the very plaintiffs who were on the winning side, making the appeal asappetizing as week-old leftovers in a refrigerator after a successful Thanksgiving dinner.

The pot started to boil in 1972 when a woman named Patricia Cross accused the ISP and the Illinois State Police Merit Board of sex discrimination. A settlement was reached between the Equal Employment Opportunity Commission and the ISP Merit Board under which the ISP was required to maintain nondiscriminatory hiring practices; the trainee classes for the ISP had to be composed of at least 25 percent minorities and 7 percent females. The agreement also required that the ISP would ensure that no less than 50 percent of those admitted to the training academy would be black, other minorities, or women. The ISP was required to report annually to the EEOC on the race and gender composition of its applicants. Washington v. Walker, 529 F.2d 1062 (7th Cir. 1976). In addition, between 1975 and 1992 there were at least 30 other complaints filed with the EEOC against the ISP alleging discrimination based on sex or race in both hiring and promotion decisions.

Also, in the 1970s the ISP instituted an affirmative action plan in an attempt to increase the numbers of females and minorities in its ranks. As so often seems to be the case, this solution resulted in the opposite predicament--the present suit by white males, alleging that they were discriminated against by the move to increase the number of females and minorities working for the ISP.

Their "reverse discrimination" case was filed in May 1992 challenging both the hiring and promotion practices of the Illinois State Police. It was litigated under both 42 U.S.C. § 1983 and Title VII, 42 U.S.C. § 2000e et seq. The practices of the ISP were once again examined for compliance with currently prevailing federal anti-discrimination laws. The district judge made numerous rulings throughout the lawsuit, for instance considering whether certain plaintiffs had filed suit within the applicable statute of limitations. On the merits, he found that the certified class of plaintiffs alleging discrimination in hiring was entitled to summary judgment on its § 1983 claim; he found that the ISP's plan violated the Equal Protection Clause because it was not "narrowly tailored to meet a compelling governmental interest." Koske v. Gainer, 1997 WL 619858 (N.D. Ill. Sept. 30, 1997). The Title VII claim proceeded to a bench trial, after which the judge concluded that the defendants violated Title VII by discriminating on the basis of race in their hiring decisions. The notice of judgment in a class action stated:

[T]he members of the class who are not current or retired ISP officers were entitled to have another opportunity to participate in the Illinois State Police application process without taking an initial entrance examination test. Instead, the members of the class may proceed to the next steps in the application process, which include a physical ability test, psychological evaluation, polygraph examination, background review, and personal interview.

The notice, however, did not include a money award or other individual relief to class members. It stated:

The court is not deciding the issues of back pay, retroactive retirement contribution or retroactive seniority for class members who were not hired or whose hiring date was delayed.

At trial, the claims of individual plaintiffs regarding discrimination in individual promotion decisions were also presented. The court found that there was discrimination behind some of the decisions. As a result, some plaintiffs won; some lost; some of those who won apparently were satisfied with the damages they were awarded; some were not.

This is where we come in. Before us are individual appeals based on various promotion claims and an appeal involving the failure to make a monetary award to the class members on the hiring claims.

Before we get to the issues, however, we must address concerns about our jurisdiction over the claims of certain plaintiffs. After the seven individual plaintiffs alleging discrimination in hiring decisions filed their appeals, it was unclear whether the decisions appealed from were final; we asked the district court to clarify whether it had resolved all of the parties' claims. On March 23, 1999, the district judge found that there was no just reason for delay and said in open court that he would enter judgment under Rule 54(b) on the "claims of the individually named plaintiffs, including the individual claim of class representative Aaron Booker." It is undisputed that this order, which we will construe as a certification pursuant to Rule 54(b), cleared up the jurisdictional issue as to several of the individuals but left questions in the cases of Owen Reeves, Steven J. Sweeney, and in the class action.

Like other individual plaintiffs, Reeves and Sweeney filed notices of appeal from non-final orders. As we said, we remanded the cases--now consolidated into one appeal-- and a Rule 54 certification was issued. ISP does not dispute that there is jurisdiction over the claims of the appellants who filed notices of appeal within 30 days of non-final orders but before the Rule 54(b) certification. For those people, the belated Rule 54(b) certification gave us jurisdiction over those appeals based on the prematurely filed notices of appeal. Local P-171, Amalgamated Meat Cutters and Butcher Workmen of North America v. Thompson Farms Co., 642 F.2d 1065 (7th Cir. 1981).

But as to Reeves and Sweeney, the ISP argues that there is no jurisdiction because their notices of appeal were filed more than 30 days from the entry of the non-final orders from which they were appealing. The order Reeves appeals from was entered March 27, 1997, and his notice of appeal was filed on May 22, 1998. The order Sweeney appeals from was dated April 23, 1998, and his notice of appeal was filed on May 27, 1998. Despite Reeves' rather cavalier claim that he did, the record shows that neither he nor Sweeney filed a second notice of appeal following the entry of the Rule 54(b) certification.

Reeves argues that he could not "legally" have filed a notice of appeal in 1997 because the summary judgment order of March 1997 was not final and appealable. He then says that the order did not become appealable until the district court made a Rule 54(b) finding. But he also says of the Rule 54(b) finding that, "after which Reeves timely filed his Notice." Then a few sentences later he says that "[d]efendants apparently argue that Reeves should have appealed from the Rule 54(b) order. This makes no sense."

What we have trouble making sense of is Reeves' argument. Despite that, after reconstructing his argument, we will allow Reeves' appeal to proceed. Although he does not say so in his appellate brief, Reeves must have thought his right to appeal was triggered by the April 23, 1998, order of the district court, which set back pay and damages for several individual plaintiffs on their promotion claims and included a "Notice of Judgment in Class Action." It is this order, labeled "Revised Final Order," from which the other plaintiffs, also apparently thinking that it was a final judgment, filed their notices of appeal. We questioned whether it was final, and that is why this case now includes a Rule 54(b) certification. If the April 23, 1998, order had been a final judgment, Reeves would have been able to appeal the 1997 order dismissing his claim at that time--that is, when the case was over. 28 U.S.C. § 1291. And his appeal would have been timely. As it turned out, the April 1998 order was not a final judgment. But of course the Rule 54 certification, which was proper, made it appealable. So the ISP argues that either Reeves had to file a timely notice of appeal from the Rule 54(b) certification or he should have filed one way back in 1997, within 30 days of the order dismissing him from the lawsuit. The argument is apparently based on the fact that the April 23, 1998, order really has nothing to do with him; his claim had been dismissed the year before. Where does this leave Reeves?

To leave him out in the cold would be setting hypertechnical traps for those who make reasoned judgments about what various court orders mean. Reeves filed a timely appeal when he reasonably believed a final judgment had been entered. It was, after all, labeled "Revised Final Order." Even though it left loose ends on the hiring claims, it ended all aspects of the promotion claims. When it was certified under Rule 54, the promotion claims were fully litigated. Given this unusual set of circumstances--particularly the fact that Reeves filed a timely notice of appeal from the "Revised Final Order"--his appeal will be allowed to proceed.

Sweeney, on the other hand, acknowledges that his notice of appeal was filed one day late from the order of April 23, 1998, and he does not argue...