Opinion
No. 98 C 4807.
August 24, 2000.
MEMORANDUM OPINION AND ORDER
The named Plaintiffs in this action, four white, male Chicago police officers, have sued the City of Chicago ("City") under Title VII, 42 U.S.C. § 2000e et seq., and the Equal Protection Clause of the Fourteenth Amendment. In their fourth amended complaint, they allege that the City's merit promotion system, which it uses to promote officers to the rank of sergeant, is actually a mask for an illegal affirmative action program and has a disparate impact on "non-minority males." For a second time, Plaintiffs have moved to certify a class of police officers disappointed by their unsuccessful applications for promotion to the rank of sergeant.
All of the Plaintiffs took and passed the written qualifying examination for the sergeants promotional process in January 1998. This made each eligible for promotion based on merit and eligible to participate in a further written assessment exercise offered in April 1998. Complaint ¶¶ 4, 6, 8, 10. Each Plaintiff took the written assessment exercise in April 1998 and received a numeric ranking based on his score on that test. Id. The City promoted the 175 officers who received the top 175 scores on the written test. It also promoted an additional 75 officers pursuant to a "merit" selection process and without regard to those candidates' scores on the written qualifying examination. The four named Plaintiffs were not promoted at that time under either system. They contend that, had the City used only the written qualifying examination scores to determine which officers to promote, they would have received promotions to the rank of sergeant in 1998.
The court denied Plaintiffs' first motion for class certification, concluding that Plaintiffs had failed to clearly define the proposed class. The court also had serious reservations about certifying a class action in a case in which the Fraternal Order of Police (FOP) was funding litigation that appears to pit the interests of one group of its members against the interests of another group of its members. The court indicated that it would entertain a renewed motion for class certification, but directed Plaintiffs to clarify the reasons for the class definition they had proffered and to address the court's concerns regarding FOP funding of this lawsuit. As explained below, however, Plaintiffs have not alleged the court's concerns about either of these issues.
1. Class Definition
Plaintiffs claim that they have defined a "clear and viable class" of
[a]ll Caucasian males who are eligible for promotion to the rank of sergeant in January, 1998, who subsequently took the written assessment exercise in April, 1998, and who received a score high enough to have been promoted in rank order but for the Defendant's use of merit promotions.
Plaintiffs' Memorandum in Support of Their Renewed Motion for Class Certification at p. 4. Plaintiffs acknowledge that there are minority officers who fell into the group scoring 176th through 250th on the written assessment exercise but assert that "to the extent that this group has suffered injuries as a result of the 1998 Sergeants promotional process, they are not identical to those of Caucasian males." Id. Presumably, Plaintiffs' class would thus consist of white persons within the 75 people whose scores were 176th to 250th on the written assessment exercise.
The court continues to have concerns about inconsistencies in the renewed motion for class certification. In the motion itself, Plaintiffs propose a class consisting of 50 male Caucasians who scored high enough on the written assessment exercise to have been promoted in rank order to sergeant, but for the merit promotions. In the section of the fourth amended complaint that sets forth the allegations as to the class, however, Plaintiffs variously describe the class as "60 Caucasian candidates" (¶ 15); state that "there are 73 injured plaintiffs," making joinder impracticable (¶ 16) and that "each of the 73 candidates passed over for in-rank-order promotions share common questions of law and fact" (¶ 17); and assert that the named Plaintiffs can adequately represent the interests of the "Caucasian patrol officers" and that their injuries are typical of those suffered by "Caucasian male patrol officers" (¶ 18). the conflicting class descriptions suggest that Plaintiffs have not followed the court's admonition in its previous ruling that they must clearly define the class before the court can determine whether they are adequate representatives for that class.
In their motion for leave to file a fourth amended complaint and the fourth amended complaint itself, Plaintiffs have also created additional confusion regarding the class definition and how it relates to the sex of the proposed class members. The third amended complaint contained the allegation that the City unlawfully considered "race, ethnicity and gender" in its merit promotions. Third Amended Complaint ¶¶ 23, 31. In their motion for leave to file a fourth amended complaint, Plaintiffs sought leave to dismiss Count I (which stated a claim for violation of the Equal Protection Clause based on race, ethnicity and gender) to the extent that it challenged the promotions of female officers because "(t)hroughout the course of discovery, it became clear that the City's merit process did not amount to a benefit to female patrol officers. Indeed, more female patrol officers would have been promoted in rank order than were promoted via the merit process." Plaintiffs' Motion for Leave to File Fourth Amended Complaint, p. 3. Given this admission, if Plaintiffs were to prove their case and establish that the City had been using the merit promotion system as a cover for an improper affirmative action program, one would expect the injured class to be comprised of all white officers who received a specific score or higher on the written test. Yet, Plaintiffs have apparently offered to certify as a class only the men from that group. They offer no explanation for the exclusion of women from the class.
Months after this second class certification motion was fully briefed, Plaintiffs apparently recognized this problem and filed a motion for leave to file a modified class definition, removing the word "male" from the definition. This untimely motion does little to satisfy the court that Plaintiffs will adequately and effectively represent the interests of all class members.
As Plaintiffs themselves point out, "(t)he class action device saves the resources of both the courts and the parties by permitting an issue potentially affecting every [class member] to be litigated in an economical fashion under Rule 23." General Telephone Co. v. Falcon, 457 U.S. 147, 155 (1982), citing Califano v. Yamasaki, 442 U.S. 682, 700-701 (1979). Plaintiffs' claim that certification would allow issues common to the entire class to be litigated in one proceeding ignores the fact that their class definition excludes certain patrol officers who appear to have identical claims.
Plaintiffs assert that the failure to clearly define a class is not fatal to a motion for class certification, citing Boucher v. Syracuse University, 164 F.3d 113, 118 (2d Cir. 1999). At this point in the litigation, however, Plaintiffs' failure is not caused by a lack of knowledge about the details of the class that further discovery will resolve, but apparently instead by the lack of interest in representing the entire class that Plaintiffs' own assessment of the facts has indicated is the proper one. The court allowed Plaintiffs to file four amended complaints and warned them that no further amendments would be permitted. They have had more than ample time to clarify the nature and scope of their claims and to identify the proposed class.
2. FOP Funding
Nor have Plaintiffs adequately addressed the court's concerns regarding the FOP's involvement in this litigation and how it may affect the adequacy of Plaintiffs' representation. Two of the Plaintiffs testified that the FOP is paying the attorneys in this case and that Plaintiffs themselves have no responsibility to do so. (Barnhill Dep., at 71; Hitiris Dep., at 62.) Plaintiff Evangelos Hitiris testified that his understanding of the case was that the FOP was filing the lawsuit based on behalf of its members and handling the payment of fees in the case. Id. The FOP's general counsel, Thomas Pleines, has himself filed an appearance in this matter. It appears to the court that the FOP is the driving force behind this litigation despite the fact that it is not a party of record and apparently does not have standing to challenge the promotional process itself. See Nolan v. Hillard, 309 Ill. App.3d 129, 143, 722 N.E.2d 736 (1st Dist. 1999) (FOP did not have standing to challenge education requirement or merit component of City's promotional procedures for patrol officers).
Hitiris has since withdrawn from the lawsuit.
As the court observed earlier, one of the court's concerns is that the FOP is presumably funded by all patrol officers, minorities as well as white officers. Yet the lawsuit argues that white officers suffer from discrimination that favors minority officers. The court presumes that at least some FOP members would challenge that claim. Indeed, as is evidenced by the fact that some patrol officers have initiated litigation against the City challenging its written qualifying examinations, not all FOP members agree that written examinations should be the exclusive tool used to determine who is promoted. See Bryant v. City of Chicago, 200 F.3d 1092 (7th Cir. 2000) (challenging lieutenant's exam as discriminatory). That the FOP initially kept its funding of and involvement in this litigation under seal arguably reflects its own awareness that its participation here could be controversial.
Instead of addressing these concerns, which the court articulated in open court after ruling on the original motion for class certification, Plaintiffs have focused the instant motion on whether there is a conflict between the other members of the class they wish to certify and themselves. That is simply not the issue the court identified as a potential problem and requested Plaintiffs to address. This reluctance to be forthcoming with the court about their representation and who is actually spurring this litigation leaves the court without the information it needs to determine whether or not Plaintiffs are adequate class representatives. See Jaroslawicz v. Safety Kleen Corp., 151 F.R.D. 324, 330 n. 2 (N.D. Ill. 1993) (court denied certification of class based on failure to satisfy adequacy of representation element). In Jaroslawicz, the plaintiff was not forthcoming about his relationship with the law firm representing the class and did not bring his close relationship with the firm to the court's or defendants' attention. He also did not respond to defendants' inquiries as to his relationship until compelled to do so by the court. Id. Those facts closely parallel the situation here, where Plaintiffs' relationship with their attorneys and the FOP was concealed until the court granted Defendant's motion to compel the production of information regarding Plaintiffs' fee arrangement.
CONCLUSION
Despite ample opportunity to do so, Plaintiffs have not convinced the court that they are able to "fairly and adequately protect the interests of the class." FED. R. Civ. P. 23(a)(4). For these reasons, Plaintiffs' renewed motion for class certification (Doc. No. 71-1) is denied. Plaintiffs' motion to modify class definition (Doc. No. 103-1) is denied.