Petit v. City of Chicago

766 F. Supp. 607

Robert PETIT, et al., Plaintiffs, v. CITY OF CHICAGO, et al., Defendants.

No. 90 C 4984.

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

May 16, 1991.

COPYRIGHT MATERIAL OMITTED

Kimberly A. Sutherland, Chicago, Ill., for plaintiffs.

Sarah Vanderwicken, Jay M. Kertez, Kelly R. Welsh, City of Chicago-Corp. Counsel, Chicago, Ill., for defendants.

MEMORANDUM OPINION AND ORDER

HART, District Judge.

I. FACTS

In 1973, the United States Department of Justice brought suit against the City of Chicago (the "City") charging discrimination in hiring and promoting blacks, Hispanics and women within the Chicago Police Department. As a result, in January of 1976, a permanent injunction was entered barring the City from using any tests, qualifications, standards or procedures that were not job-related. In particular, the City was enjoined from excluding "blacks, Spanish-surnamed persons or women from employment opportunities in the Chicago Police Department." United States v. City of Chicago, 411 F.Supp. 218, 248 (N.D.Ill.1976), aff'd, 549 F.2d 415, 439 (7th Cir.1977). The City was specifically ordered to "maintain a sergeant mix reasonably representative of the patrol force." Id. at 250.

In 1978 and 1979, the City administered a sergeants' examination to determine promotion eligibility in rank order. The City compiled a sergeants' promotion list based upon the results of the 1978-79 examination, and the City, under the court's supervision, promoted police officers to the rank of sergeant in rank order and subject to imposed ratios. United States v. City of Chicago, 663 F.2d 1354 (7th Cir.1981) (modifying ratios for promotion of sergeants to twenty-five percent black and Hispanic males; five percent female).

From 1985 to 1988, the City developed and administered a new sergeants' examination. The 1985-88 examination consisted of four parts, each of which was weighted differently: (1) 28% weight for the multiple choice written test; (2) 29% weight for the short-answer written test; (3) 40% weight for an oral board examination; and (4) 3% weight for performance evaluations. When the tests were first scored, there was an impermissible disparate impact on blacks and Hispanics. United States v. City of Chicago, No. 73 C 2080, memorandum order at 3 (N.D.Ill. Nov. 21, 1988) (1988 WL 128694, 1988 U.S.Dist. LEXIS 13242). The City moved to superimpose a quota on the sergeants' list to make adjustments in favor of Hispanic and female applicants. The City's motion was denied. Id.

Many of the plaintiffs in the present case intervened in City of Chicago charging, among other things, discrimination regarding the scoring of the 1985-88 sergeants' promotional examination.¹ Specifically, the intervenors complained that the City "manipulated" the raw scores of the sergeants' promotion test to purposefully benefit racial minorities and, therefore, discriminate against white applicants for sergeant. Intervention was upheld in United States v. City of Chicago, 870 F.2d 1256 (7th Cir. 1989). Thereafter, the City moved to dismiss the intervenors' claims. On October 26, 1990, some claims were dismissed with prejudice and some without prejudice.²

Having failed to obtain relief in City of Chicago, the intervenors, along with additional white police officers, filed the present action against the City and also against numerous city officials.³ The complaint in this action again charges discrimination in the scoring and use of the 1985-88 sergeants' examination. The City now moves to dismiss the present lawsuit arguing, among other things, the doctrine of res judicata.

II. CLAIMS PREVIOUSLY DISMISSED WITH PREJUDICE

Concerning the doctrine of res judicata,⁴ the City's motion to dismiss divides the plaintiffs into two distinct groups: Those plaintiffs who intervened in United States v. City of Chicago (the "intervenors") and those plaintiffs who did not (the "non-intervenors"). The first inquiry is whether the intervenors are precluded by the doctrine of res judicata from bringing the present suit. If they are, the second inquiry is whether the non-intervenors are in privity with the intervenors and, therefore, also precluded from bringing suit.

A. Res Judicata

The federal common law of res judicata determines the preclusive effect of a federal court judgment on a subsequent federal court case. Conner v. Reinhard, 847 F.2d 384, 394 (7th Cir.1988) (citing In re Energy Coop., Inc., 814 F.2d 1226, 1230 (7th Cir.1987)). Under the doctrine of res judicata, a final judgment on the merits bars further claims by parties or their privies based on the same cause of action. Car Carriers, Inc. v. Ford Motor, 789 F.2d 589, 593 (7th Cir.1986) (citing Brown v. Felsen, 442 U.S. 127, 131, 99 S.Ct. 2205, 2209, 60 L.Ed.2d 767 (1979)) ("Once a transaction has caused injury, all claims arising from that transaction must be brought in one suit or be lost."). Previously, a final judgment on the merits was entered concerning the claims of the intervenors. United States v. City of Chicago, 752 F.Supp. 252 (N.D.Ill.1990) (expressly stating that there was no just reason for delay and expressly directing entry of final judgment); see Fed.R.Civ.P. 54(b); see also Gilldorn Sav. Ass'n v. Commerce Sav. Ass'n, 804 F.2d 390 (7th Cir.1986) (citing American Postal Workers Union v. United States Postal Service, 736 F.2d 317, 319 (6th Cir.1984)) ("Final judgment in the case as a whole is not necessary; motion to dismiss decision can be given preclusive effect as long as issue finally decided.").

In determining the scope of a "cause of action," the Seventh Circuit uses the "same transaction" test. Alexander v. Chicago Park District, 773 F.2d 850 (7th Cir.1985). Under this test, a cause of action is defined as "a `single core of operative facts' which give rise to a remedy." Id. at 854. Once a transaction has caused injury, all claims arising from that transaction must be brought in one suit. Thus, a "mere change in the legal theory does not create a new cause of action." Id. Under the "same transaction" test, the present case is based upon the same cause of action as United States v. City of Chicago. The single core of operative facts that was the subject of the intervenors' complaint in City of Chicago is the same as alleged in this case — the standardization of the 1985-88 sergeants' promotion examination for rater and race. Plaintiffs do not argue otherwise. Therefore, res judicata applies.

Several of the intervenors' claims were dismissed with prejudice and one claim was dismissed without prejudice. As parties in City of Chicago, the intervenors are precluded by the doctrine of res judicata. See Local 322 v. Johnson Controls, Inc., 921 F.2d 732 (7th Cir.1991); County of Cook v. Midcon Corp., 574 F.Supp. 902, 913-14 (N.D.Ill.1983) (Intervenors are parties). The intervenors' claims that were previously dismissed with prejudice cannot be refiled in this action, and the City's motion to dismiss as to the intervenors is granted.

B. Privity

As for the non-intervenors, it must be decided whether they were "in privity" with the intervenors. The term "privity" signifies that the relationship between two or more persons is such that a judgment involving one of them may justly be conclusive upon another who was not directly a party to the litigation. Secretary of Labor v. Fitzsimmons, 805 F.2d 682, 688 & n. 9 (7th Cir.1986); 18 C. WRIGHT, A. MILLER, & E. COOPER, FEDERAL PRACTICE & PROCEDURE § 4449 (1981 & Supp.1990). Privity between parties is established where the parties' interests are so closely aligned that they represent the same legal interests. Fitzsimmons, 805 F.2d at 688. Under federal res judicata law, a person may be precluded if the prior party so closely represented his interests as to be his "virtual representative." Id. at 688 n. 9 (quoting Nash City Bd. of Educ. v. Biltmore Co., 640 F.2d 484, 493 (4th Cir.1981)). "Virtual representation" is a doctrine allowing the preclusion of parties not present in the first case, provided that someone who was present had the same interests as the absent party and so had every reason to prosecute or defend the case as vigorously. Vas-Cath, Inc. v. Mahurkar, 745 F.Supp. 517, 531 (N.D.Ill.1990) (Easterbrook, J.).

The issue, therefore, is whether the intervenors adequately and vigorously represented the interests of the non-intervening white police officers in the prior litigation. See F. FRIEDENTHAL, M. KANE, & A. MILLER, CIVIL PROCEDURE 683 (1985) (privity arises when the interests of the non-party were adequately represented in the initial action). This is not a case of police officers who could have intervened, but did not. Mandatory intervention has been rejected both in this Circuit and in the United States Supreme Court. Martin v. Wilks, 490 U.S. 755, 109 S.Ct. 2180, 104 L.Ed.2d 835 (1989) (rejecting the rule that plaintiffs should have intervened in first suit);⁵Fabricius v. Freeman, 466 F.2d 689, 693 (7th Cir. 1972) (that one could have intervened and did not, does not result in the person being bound by first judgment). The present case is one where some white police officers did intervene and represent the interests of the white employees. Moreover, the prior litigation was adversarial at trial and appellate level and concluded in a dismissal of claims, not in a consent decree. Thus, the interests and representation of the white employees, which concerned the Court in Martin v. Wilks, is not questioned in this case.

The legal and factual issues in this case are identical to the issues in City of Chicago. The non-intervenors retained the same counsel who represented the intervenors in City of Chicago. The non-intervenors have raised no question about the adequacy of representation previously afforded the intervenors when they pursued the interests of the white police officers. Such identity of interests alone, however, is not sufficient to yield a finding of privity between the parties. Mann v. City...