US v. City of Chicago, 73 C 2080

• Decision Date: 26 October 1990
• Docket Number: 80 C 5246.,No. 73 C 2080,73 C 2080
• Citation: 752 F. Supp. 252
• Parties: UNITED STATES of America, Plaintiff, Robert Petit, et al., Plaintiffs-Intervenors, v. CITY OF CHICAGO, Defendant. William C. BIGBY, et al., Plaintiffs, Ann Erwin, et al., Plaintiffs-Intervenors, v. CITY OF CHICAGO, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

752 F. Supp. 252

UNITED STATES of America, Plaintiff, Robert Petit, et al., Plaintiffs-Intervenors, v. CITY OF CHICAGO, Defendant.

William C. BIGBY, et al., Plaintiffs, Ann Erwin, et al., Plaintiffs-Intervenors, v. CITY OF CHICAGO, et al., Defendants.

Nos. 73 C 2080, 80 C 5246.

United States District Court, N.D. Illinois, E.D.

October 26, 1990.

COPYRIGHT MATERIAL OMITTED

FINAL MEMORANDUM ORDER

PRENTICE H. MARSHALL, Senior District Judge.

In United States v. City of Chicago, 870 F.2d 1256 (7th Cir.1989), Ann Erwin and her colleagues persuaded the Court of Appeals for this circuit that I erred when I denied their motion to intervene in Bigby v. City of Chicago, 80 C 5246. They sought to challenge the standardization of scores on the 1987 lieutenants' examination which had a disparate impact on the black sergeants who took the examination. On remand I permitted Erwin, et al. to intervene in the Bigby case.

Thereafter, I permitted Robert Petit, et al. to intervene in United States v. City of Chicago, 73 C 2080 for the purpose of challenging the standardization of scores on the 1987 sergeants' examination which had a disparate impact on black males and all females who took the examination. The Petit intervenors are represented by the same lawyer who represents the Erwin intervenors.

On December 12, 1989, Magistrate Elaine E. Bucklo filed comprehensive reports and recommendations in 73 C 2080 and 80 C 5246 regarding motions to strike and dismiss certain of the allegations of the Petit and Erwin complaints. I approved those reports and recommendations in their entirety and dismissed certain of the intervenors' claims and ordered others to be answered by defendants. Those were not final orders. Rule 54(b), F.R.C.P.

In July of this year the City of Chicago advised the court and the parties that it was undertaking "voluntary affirmative action" with respect to promotions to the ranks of sergeant and lieutenant. The precise dimensions of the voluntary affirmative action were not spelled out in the notice. The city merely stated that it "planned to make promotions at each rank, including sergeant and lieutenant, at proportions for minorities and women at a level of twenty percent above the composition of those groups in the relevant lower ranks, with two exceptions." Notice to Court, filed July 16, 1990.

The standardization of the test scores for promotion to sergeant and lieutenant provoked some fresh (i.e., nonintervenor) litigation. Henry F. Gralak, et al., v. City of Chicago, et al. 89 C 6247 (originally assigned to Judge Plunkett); Ann Erwin, et al. v. City of Chicago, et al., 90 C 950 (originally assigned to Judge Rovner but transferred to Judge Williams). The voluntary affirmative action undertaken by the city has provoked more fresh litigation. Robert Petit, et al. v. City of Chicago, et al., 90 C 4984 (assigned to Judge Hart); Fraternal Order of Police, Lodge 7 v. Richard M. Daley, Mayor, etc., et al., 90 C 5203 (assigned to Judge Nordberg). The fresh Erwin and Petit cases have been brought by the same lawyer who represents them as intervenors in these actions.

In addition, counsel for Erwin moved to join Kenneth Flaxman and Stephen Seliger as defendants in the Bigby case (80 C 5246) alleging that they, as counsel for Bigby, et al., conspired with the City to standardize unlawfully the lieutenant test scores. I denied the motion. Undaunted, counsel joined Flaxman and Seliger in 90 C 950.

In United States v. City of Chicago, 870 F.2d 1256, 1259, the court, while ordering that Erwin, et al. be permitted to intervene in the Bigby case, observed that I am not an ombudsman of the Chicago Police Department and that this litigation strikes a "parallel to the interminable equity proceedings mocked in Dickens' novel Bleak House." See also United States v. City of Chicago (appeal of the Fraternal Order of Police) 894 F.2d 943, 948 (7th Cir.1990) (Easterbrook, J. concurring tracing the political history of the presidency of the United States and the mayoralty of the City of Chicago during the course of this litigation.)

Defendants requested me to accept reassignment of the fresh cases (involving standardization of scores and voluntary affirmative action) as related to 73 C 2080 and 80 C 5246. In light of the admonitions of the Court of Appeals I declined to do so.

Intervenors Petit, et al. and Erwin, et al. disagree with the orders approving the recommendations of Magistrate Bucklo and dismissing many of the allegations of their complaints. Thus, although their counsel persuaded the Court of Appeals that they were entitled to intervene in these actions, on August 16, 1990 the Petit and Erwin intervenors moved to dismiss their intervening complaints without prejudice pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure, so that they could refile them before different judges as amendments in their fresh complaints. The Bigby plaintiffs and the City objected to the motions; the United States did not oppose them. When the motions were was first presented I denied them.

But I have reflected. I will not entertain the fresh complaints challenging the standardization of test scores and the voluntary affirmative action undertaken by the City. Consequently, all of the present controversies will not be resolved in the actions before me. Furthermore, Messrs. Flaxman and Seliger are not defendants before me, although they are in one of the fresh actions. So that controversy will not be resolved here. Consequently, on my own motion I announced I would reconsider the motions of the Petit and Erwin intervenors to dismiss voluntarily their complaints. They then filed a supplement to their motions.

The matter was heard in open court. Counsel for the Petit and Erwin intervenors urged that I dismiss the totality of both intervening complaints without prejudice. I stated unequivocally that I would not do that; that only the allegations which had survived the earlier motions to dismiss would be dismissed without prejudice. Counsel for intervenors made clear her understanding of that, and persisted in the Rule 41(a)(2) motions.

Recently the Court of Appeals for this circuit in Villegas v. Princeton Farms, Inc., 893 F.2d 919 held that it is an abuse of discretion for a district court to permit a voluntary dismissal under Rule 41(a)(2) with regard to claims which have been adjudicated. But, in my judgment, it is not an abuse of discretion if I permit the intervening plaintiffs to dismiss without prejudice claims which survived the motions to dismiss.

The decrees in these two cases have served their purposes. The quarterly report of the Chicago Police Department filed October 5, 1990 shows a police department of males and females, blacks, caucasians, and hispanics. There have been no complaints of gender, race or ethnic discrimination in entry level hiring since 1975. While there are pending complaints of discrimination in promotions to sergeant and lieutenant they are essentially those of white officers alleging that blacks and hispanics are now receiving favored treatment. Today's controversies are 180 degrees from those of 1973.

Accordingly, in United States v. City of Chicago, 73 C 2080, a final judgment will be entered dismissing without prejudice the claim of plaintiff-intervenors Robert Petit, et al. challenging, under the equal protection clause of the fourteenth amendment to the Constitution of the United States, the statistical standardization of scores on the 1987 sergeant promotion test and dismissing with prejudice those claims of plaintiff-intervenors Robert Petit, et al. contained in paragraphs 19-f, 20, 23, of the intervenors' first amended complaint and those claims based upon the due process clause of the fourteenth amendment to the Constitution of the United States and those claims under 42 U.S.C. §§ 1981, 1985(3) and 1986 and the pendent state law claim contained in Count II of the intervenors' first amended complaint.

In Bigby v. City of Chicago, et al., No. 80 C 5246 a final judgment will be entered dismissing without prejudice the claims of plaintiff-intervenors Ann Erwin, et al. challenging under the equal protection clause of the fourteenth amendment to the Constitution of the United States the statistical standardization of scores on the 1987 lieutenant promotion test and the claims made under 42 U.S.C. §§ 1985(3) and 1986, and dismissing with prejudice all of the paragraphs of Count I of the first amended complaint except paragraphs 1 through 23, 24-B and 30-38 and all of the claims of plaintiff-intervenors Ann Erwin, et al. made under the due process clause of the fourteenth amendment to the Constitution of the United States and under 42 U.S.C. § 1981 and the pendent state law claim contained in Count II of the intervenors' first amended complaint and their claim for punitive damages.

The motion of intervenor-plaintiffs Robert Petit, et al. for leave to file a second amended complaint in 73 C 2080 is denied.

The objections of plaintiff-intervenors Ann Erwin, et al. to the report and recommendation of Magistrate Elaine E. Bucklo denying their motion to disqualify Kenneth Flaxman and Stephen Seliger in 80 C 5246 are overruled and the report and recommendation is approved in all respects.

Defendant City of Chicago and its Police Department are relieved of the obligation of filing quarterly reports.

There remain for consideration in 73 C 2080 certain objections filed to the determinations of ineligibility for adjustment of seniority and back pay under the consent decree entered June 7, 1989. The consent decree was affirmed by the Court of Appeals July 24, 1990. The objections are now ripe for ruling.

Objections to the proposed consent decree were heard by the court prior to the approval and entry of the decree on June 7, 1989. Thereafter, under the terms of the decree, persons who believed themselves entitled to be included in the four classes of officers entitled to tenders of...