Case: 07-2932 Document: 17-1 Filed: 09/16/2010 Pages: 39 CASE NO. 07-2932

IN THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

KEVIN GROESCH, GREG SHAFFER and )

SCOTT ALLIN,

)

)

Plaintiffs-Appellants, )

)

v.

)

)

THE CITY OF SPRINGFIELD, ILLINOIS, )

a municipal corporation,

)

)

Defendant-Appellee. )

On Appeal from the United States District Court for the Central District of Illinois, Springfield Division
Case No. 04 cv 3162 Hon. Jeanne E. Scott, Presiding

BRIEF AND REQUIRED SHORT APPENDIX OF THE PLAINTIFFS-APPELLANTS,
KEVIN GROESCH, GREG SHAFFER and SCOTT ALLIN

JAMES P. BAKER Baker, Baker & Krajewski, LLC 415 South Seventh Street Springfield, Illinois 62701 Telephone: (217) 522-3445 Telefax: (217) 522-8234

Case: 07-2932 Document: 17-1 Filed: 09/16/2010 Pages: 39
CIRCUIT RULE 26.1 DISCLOSURE STATEMENT (formerly known as Certificate of Interest)
Appellate Court No: 07-2932 Short Caption: Kevin Groesch, et.al. v. City of Springfield, Illinois
To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-governmental party or amicus curiae, or a private attorney representing a government party, must furnish a disclosure statement stating the following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1. Each attorney is asked to complete and file a Disclosure Statement with the Clerk of the Court as soon as possible after the appeal is docketed in this Court. Counsel is required to complete the entire statement and to use N/A for any information that is not applicable.
(1) The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the corporate disclosure information required by Fed. R. App. P. 26.1 by completing the item #3: Kevin Groesch, Greg Shaffer, Scott Allin (2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings in the district court or before an administrative agency) or are expected to appear for the party in this court: Baker, Baker & Krajewski, LLC (3) If the party or amicus is a corporation: not applicable.
I) identify all its parent corporations, if any: None. ii) list any publicly held company that owns 10% or more of the party's or amicus' stock: None.
The Court prefers the statement be filed immediately following docketing; but, the disclosure statement shall be filed with the principal brief or upon the filing of a motion, response, petition, or answer in this court, whichever occurs first. The attorney furnishing the statement must file an amended statement to reflect any material changes in the required information. The text of the statement (i.e. caption omitted) shall also be included in front of the table of contents of the party's main brief.
Attorney's Signature:________________________________Date: September 15, 2010. Attorney's Printed Name: James P. Baker Address: Baker, Baker & Krajewski, LLC, 415 South Seventh Street, Springfield, Illinois 62701. Phone Number: 217-522-3445 Fax Number: 217-522-8234 E-Mail Address: bschrader2@gmail.com

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TABLE OF CONTENTS
Plaintiff's Disclosure Statement ..........................................................................
Table of Contents ..................................................................................................
Table of Authorities ..............................................................................................
I. JURISDICTIONAL STATEMENT ................................................................... 1
II. ISSUES PRESENTED FOR REVIEW ............................................................. 2
III. STATEMENT OF THE CASE .......................................................................... 3
IV. STATEMENT OF FACTS ................................................................................. 4
A) The City’s Employment of Police Patrol Officers .................................. 4 B) Kevin Groesch’s Work History with the City ........................................ 5 C) Greg Shaffer’s Employment History with the City ............................... 6 D) Scott Allin’s Employment History with the City ................................... 7 E) Schluter’s Employment History with the City ...................................... 8 F) The Litigation over the Schluter Ordinance ....................................... 11 G) The Officers Attempt to Secure Treatment Similarly to Schluter’s ... 12 H) The Proceeding in the District Court ................................................... 12
V. SUMMARY OF THE OFFICERS’ ARGUMENT ........................................... 17
VI. ARGUMENT .................................................................................................... 19
A) Standard of Review ............................................................................... 19
B) The Ledbetter Act requires that the judgment of the District Court be reversed .................................................................................. 20 1) The Ledbetter Act applies to the case at bar ............................ 21 2) Because of the Ledbetter Act, the Officers’ claims are not barred by res judicata .......................................................... 24 3) The Officers’ claims under the Equal Protection Clause should be reinstated ................................................................... 26
C) The District Court mistakenly applied the res judicata doctrine in dismissing the Officers’ claims arising before the entry of the state court judgment ............................................................................. 27
VII. CONCLUSION ................................................................................................ 31
Certificate of Compliance with F.R.A.P. Rule 32(a)(7) .................................. 32 Circuit Rule 31(e) Certification ....................................................................... 33 Certificate Of Service ...................................................................................... 34 Circuit Rule 30(d) Statement/Attached Required Short Appendix ....................

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TABLE OF AUTHORITIES
CASES
Allen v. McCurry, 449 U.S. 90, 66 L.Ed.2d 308 (1980) ............................................ 28 Bazemore v. Friday, 478 U.S. 385, 92 L.Ed.2d 315 (1986) ............................. 16,17,25 Best Coin-Op, Inc. v. Paul F. Ilg Supply Company, Inc., 189 Ill.App.3d 638, 545 N.E.2d 481 (1st Dis.1989) ........................................................................................... 29 Cheek v. Western and S. Life Insurance, 31 F.2d 497, 488 (7th Cir.1994) ............... 30 Downing v. Chicago Transit Authority, 162 Ill.2d 70, 73-74, 642 N.E.2d
456 (1994) ............................................................................................................... 29 EEOC v. Harris Chernin, Inc., 10 F.3d 1286, 1288 n.3 (7th Cir.1993) ..................... 30 Ekweani v. Ameriprise Financial, Inc., 2010 WL 749648 (D. Ariz.) ........................ 20 Gasbarra v. Park-Ohio Industries, Inc., 655 F.2d 119 (7th Cir.1981) ...................... 29 Gibson v. Kroger Company, 506 F.2d 647, 652 (7th Cir.1974) .................................. 30 Glover v. Sitel Corporation, 1010 WL 1292146 (W.D. Wis.) .................................... 20 Green v. Illinois Department of Transportation, 609 F.Supp. 1021, 1025
(C.D. Ill. 1985) ........................................................................................................ 31 Henry v. Farmer City State Band, 808 F.2d 1228 (7th Cir.1986) ............................. 29 Hildebrandt v. Illinois Department of Natural Resources, 347 F.3d 1014
(7th Cir.2003) ............................................................................................ 14,25,26,27 Hughey v. Industrial Commission, 76 Ill.2d 577, 394 N.E.2d 1164 (1979) ............. 28 Karasanos v. Navistar International Transportation Corp., 948 F.2d 332
(7th Cir.1991) ........................................................................................................... 20 Konowitz v. Schnadig Corporation, 965 F.2d 230 (7th Cir.1992) .............................. 20 Kramer v. Chemical Construction Corp., 456 U.S. 461, 72 L.Ed.2d 262 (1982) ..... 28 Ledbetter v. Goodyear Tire and Rubber Company, Inc., 421 F.3d 1169
(11th Cir.2005) .................................................... 4,15,16,17,18,20,21,22,24,25,26,27 Licari v. City of Chicago, 298 F.3d 664, 666 (7th Cir.2002) ...................................... 29 Migra v. Warren City School District, Board of Education, 465 U.S. 75,
79 L.Ed.2d 56 (1984) .............................................................................................. 28

Case: 07-2932 Document: 17-1 Filed: 09/16/2010 Pages: 39
National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 153 L.Ed.2d 106 (2002) ................................................................................................................. 24,25
Nowak v. St. Rita High School, 197 Ill.2d 381, 757 N.E.2d 471 (2001) ................... 29 People v. Dejesus, 127 Ill.2d 485, 537 N.E.2d 800 (1980) ........................................ 29 Perkins v. Board of Trustees of the University of Illinois, 116 F.3d 235, 236-237
(7th Cir.1997) ........................................................................................................... 24 Perkins v. Silverstein, 939 F.2d 463, 470 (7th Cir. 1991) .......................................... 30 Reese v. Ice Cream Specialties, Inc., 347 F.3d 1007 (7th Cir.2003) ..................... 14,25 River Park, Inc. v. City of Highland Park, 184 Ill.2d 290, 703 N.E.2d 883 (1998) . 29 R.K. Ventures, Inc. v. City of Seattle, 307 F.3d 1045, 1058-1061 (9th Cir.2002) .... 26 Schnellbaecher v. Baskin Clothing Co., 887 F.2d 124, 129 (7th Cir.1989) ............... 30 Schuler v. Price, Waterhouse Coopers, LLP, 595 F.3d 370, 374 (D.C. Cir.2010) 20,21 Sharpe v. Cureton, 319 F.3d 259, 267 (6th Cir.2003) ................................................ 26 Sherman v. Standard Rate Data Service, Inc., 709 F.Supp. 1433, 1437
(N.D. Ill. 1989) ........................................................................................................ 30 Springfield Policemen’s Benevolent & Protective Association, Unit No. 5 v. City of
Springfield, 328 Ill. App.3d 1107, 817 N.E.2d 228 (4th Dis.2002) ........................ 12
STATUTES
28 U.S.C. § 1291 ........................................................................................................... 1 28 U.S.C. § 1331 ........................................................................................................... 1 28 U.S.C. § 1337 ........................................................................................................... 1 28 U.S.C. § 1738 ......................................................................................................... 28 42 U.S.C. § 1983 ........................................................................ 1,14,16,18,21,26,27,28 42 U.S.C. § 2000e et.al. ................................................................................................ 3 42 U.S.C. § 2000e-5 ...................................................................................................... 2 42 U.S.C. §§ 20003-5(b),(e),(f) .................................................................................... 30 42 U.S.C. § 2000e-5(e)(3)(A) .................................................................................. 20,21 42 U.S.C. § 2000e-5(f)(1) ............................................................................................ 30

Case: 07-2932 Document: 17-1 Filed: 09/16/2010 Pages: 39

NO. 07-2932 IN THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

KEVIN GROESCH, GREG SHAFFER )

and SCOTT ALLIN,

)

)

Plaintiffs-Appellants, )

)

v.

)

)

THE CITY OF SPRINGFIELD,

)

ILLINOIS, a municipal corporation, )

)

Defendant-Appellee. )

On Appeal from a judgment of the United States District Court for the Central District of Illinois, Springfield Division Case No. 04 CV 3162 Hon. Jeanne E. Scott, Presiding

INITIAL BRIEF OF KEVIN GROESCH, GREG SHAFFER AND SCOTT ALLIN

I. JURISDICTIONAL STATEMENT

Kevin Groesch, Greg Shaffer and Scott Allin [“the Officers”], Caucasian

patrol officers on the Police Department [“Department”] of the City of Springfield,

Illinois [“City”], advanced claims of race discrimination before the District Court.

They invoked the jurisdiction of the District Court relying upon 28 U.S.C. Sections

1331 and 1337, and 42 U.S.C. Sections 1983 and 2000e-5.

Title 28, United States Code, Section 1291 gives this Court jurisdiction to

hear final decisions of the district courts of the United States. In this appeal, the

Officers request that this Court reverse an order entered on July 11, 2007 by the

District Court granting summary judgment to the City. A timely notice of appeal

was filed with the clerk of the District Court on August 10, 2007.

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II. ISSUES PRESENTED FOR REVIEW 1. Because of the enactment into law of the “Lilly Ledbetter Fair Pay Act of 2009" [42 U.S.C. § 2000e-5] (“Ledbetter Act”), must the judgment of the District Court be set aside? a) In view of the Ledbetter Act, were the claims of the Officers perfected in a timely manner? b) In view of the Ledbetter Act, are the Officers claims barred by the doctrine of res judicata in their entirety? 2. Did the District Court err by applying the doctrine of res judicata to dismiss the Officers’ backpay claims arising prior to the state court judgment?
III. STATEMENT OF THE CASE In November of 1999 Donald Schluter [“Schluter”], an African-American police patrol officer for the City, voluntarily resigned his employment in order to take a job in the private sector. In late January of 2000 he asked to return to his job on the Department. At that time an ordinance of the City prevented him from returning to his job unless he went through the City’s hiring process for new police officers. Nonetheless, in March of 2000, the Springfield City Council enacted an ordinance enabling him to return to the City’s employment. Upon his return to employment, he was credited with his prior years of service. This enabled him to receive the same salary and level of fringe benefits that he was receiving at the time he left the City’s employ. Like Schluter, each of the Officers at one time left the Department and later
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returned to work as a police patrol officer. Unlike Schluter, however, none of them were restored with their prior years of service. Instead, each had to start over. Unlike Schluter who retained the same salary he had when he left his employment, each of the Officers, upon returning to the Department, had to start at the bottom of the salary scale for police patrol officers.
Following Schluter’s return to employment with the City, the Officers made a request to the Chief of Police that they, like Schluter, be credited with their earlier years of service. This request was ignored. As a result, they were deprived of the salary which they would have received had they been treated as Schluter.
Based upon these events, the Officers advanced before the District Court claims of race discrimination in violation of both Title VII of the "Civil Rights Act of 1964" ["Act"] (42 U.S.C. § 2000e et.al.) and the Equal Protection Clause of the Fourteenth Amendment to the Constitution.
Following discovery, the City requested that the District Court grant it summary judgment.
On December 29, 2006 the District Court with two exceptions denied the City’s request.1
On January 18, 2007 the District Court stayed any further proceedings in this case pending the decision of the United States Supreme Court in the case,
1 The District Court granted summary judgment to the City with respect to: 1) any claim for damages of the Officers arising prior to November 10, 2003, the date a judgment was entered in a state court proceeding between the City and the Officers; and 2) Shaffer’s claim for monetary damages accruing prior to January 19, 2005.
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Ledbetter v. Goodyear Tire and Rubber Company, Inc., 421 F.3d 1169 (11th Cir. 2005). On May 29, 2007 the Supreme Court issued its decision in Ledbetter. Relying upon the holding in Ledbetter, the District Court vacated its earlier ruling and granted summary judgment to the City concluding that the claims of the Officers were both time barred and barred by res judicata.
IV. STATEMENT OF FACTS A) The City’s Employment Of Police Patrol Officers. The hiring process for police officers for the City is governed by the Springfield Civil Service Commission. An individual wishing to become a police officer must initially go through a testing process. Thereafter, he is placed on an eligibility roster. An applicant is ranked on that roster based upon the score he achieved as a result of the testing process. Applicants are hired by the City as police officers from that list in the order of their ranking on the list [R22, Ex.4, pp. 11-14,18]. Once hired, a police officer’s salary as well as the amount of the fringe benefits to which he is entitled varies directly with his length of service. The longer one serves the City as a police patrol officer, the greater his salary and benefits [SA73 ¶10, R22, Ex.4, p.28, Ex.5,p.22]. Section 36.58 of the Springfield City Code contains the City’s leave of absence policy. That section provides that an employee shall not be granted a leave of absence for the purpose of working for a “for profit” entity. Section 36.60 of the Springfield City Code provides that when a City employee submits a resignation from employment it becomes irrevocable once accepted by the City [R22, Dep.Ex.4].
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B) Kevin Groesch’s Work History With The City. In December of 1988 Kevin Groesch [“Groesch”] had served the City as a police patrol officer for approximately 7 ½ years. His rate of pay at that time was based upon his years of service with the City. In December of 1988 he accepted a position with the Illinois Department of Corrections as an investigator. In that position he performed various investigatory activities and possessed police powers [R22, Groesch Aff.3,16]. Prior to leaving the Department in 1988, Groesch requested a six month leave of absence and later a three month leave of absence. Those requests were denied, but he was granted a sixty day leave of absence [R22, Groesch Aff.10]. Shortly following the expiration of his leave of absence, Groesch inquired with Department officials about returning to the City as a patrol officer. Because his leave of absence had expired and he had resigned his employment, he was informed he could not return to the Department as a police patrol officer without going through the hiring process [R22, Groesch Aff.11]. In 1994 Groesch discovered that the City of Champaign, Illinois had adopted an ordinance allowing police officers who resigned in good standing to return to employment with it without going through the hiring process for new hires. He approached his Alderman to see if a comparable ordinance might be adopted by the City. Later, his Alderman informed him that the Champaign concept had been discussed with other members of the City Council, but there was insufficient support to adopt such an ordinance [R22, Groesch Aff.6].
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Between 1989 and September of 1996 each time the Department created a new eligibility list to hire police officers, Groesch made application for a patrol officer position, was tested and placed on the eligibility list. In September of 1996 he was hired by the City as a police patrol officer. Because of his law enforcement experience, he was not required to attend the Police Academy upon returning to employment with the City as a police patrol officer [R22, Groesch Aff.7-8].
At the time he returned to the Department, Groesch, because of his employment with the Illinois Department of Corrections, had an additional eight years of experience as a law enforcement officer [R22, Groesch Aff.9].
When he returned to the Department as a police patrol officer in September of 1996, he was not restored the years of service he had earned prior to leaving the Department in 1988. Instead, he had to start over with the Department in accruing service. His salary and fringe benefits were calculated as if he had never before served on the Department [R22, Groesch Aff.12].
C) Greg Shaffer’s Employment History With The City. Greg Shaffer [“Shaffer”] joined the Department as a patrol officer in January of 1980. In July of 1987 after he was denied a leave of absence, he left the Department. He returned to the Department as a patrol officer in July of 1993. Like Groesch, upon his return, he had to go through the rehiring process. Once hired, he was given no credit for his prior 7 years of service in determining his salary and fringe benefits [R22, Dep.Ex.7a].
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D) Scott Allin’s Employment History With The City. Scott Allin [“Allin”] joined the Department as a police patrol officer in January of 1980. In 1986 he left the Department to go into business for himself. Prior to leaving, he requested from the Chief of Police a leave of absence. That request was denied [R22, Allin Aff.1-4]. Approximately six months after he left the Department, Allin attempted to return to the Department as a police patrol officer. He contacted the City’s Personnel Director to find out what was required in order for him to return. He was informed that he would have to submit a new application for employment, undergo the necessary testing and then be placed on the police patrol officer eligibility roster. Following that advice, Allin made application to return to the Department, took the necessary tests and was placed on the eligibility roster [R22, Allin Aff.5-6]. On January 9, 1989, Allin was selected from the eligibility roster and hired by the City as a police patrol officer. When he returned to the Department, he discovered that he had been given no credit for his six earlier years of service with the Department as a police officer. Instead, his salary and fringe benefits were calculated as if he had never before worked as a police patrol officer [R22, Allin Aff. 7]. Following the completion of his probationary period, the City refused to restore to Allin his prior years of service. Accordingly, through the Policemen’s Benevolent and Protective Association, Unit 5 [“Union”], the police patrol officer union, Allin submitted a grievance requesting that his earlier years of service be restored to
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him. The City opposed that grievance and it was eventually submitted to arbitration. On January 24, 1991 the arbitrator concluded that under the terms of the collective bargaining agreement governing Allin’s employment, he was not entitled to credit for his earlier years of service [R22, Allin Aff.8-9].
When Allin left the Department in December of 1986, he had almost seven years of service with it. The rate of his salary and certain fringe benefits were based upon those years of service. When he returned to the Department in January of 1989, he was not restored those years of service. Instead, he had to start over and his salary and fringe benefits were calculated as if he were a new hire [R22, Allin Aff.8-9].
E) Schluter’s Employment History With The City. Schluter, an African-American, joined the Department as a police patrol officer on April 4, 1994. In late 1999 he resigned from the Department to take a job as a conductor with the Norfolk Southern Corporation [R22, Schluter Dep.7,1213,36-37]. On October 29, 1999 Schluter submitted his resignation from employment as a police patrol officer with the City effective November 12, 1999 [R22, Dep.Ex.1]. John Harris, the Chief of Police for the City, became aware that Schluter was planning to leave the Department. Retention of minorities on the Department was important to Harris. He informed Schluter he did not want to lose him from the Department. Schluter informed Harris that he wanted to try something new. He asked Harris if he could take a leave of absence. Harris indicated he would check
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about whether a leave of absence could be granted [R22, Harris Dep.31-32,Dep.Ex. 1].
Thereafter, Harris checked with the City’s Department of Human Resources about the possibility of Schluter taking a leave of absence. He was informed that, under City policies, a leave of absence could not be granted because Schluter intended to go to work in the private sector. Harris informed Schluter that he was not eligible for a leave of absence. Nonetheless, Schluter resigned and left the Department in November of 1999 [R22, Harris Dep.34-37; Ex.4]. Harris was aware that when Schluter submitted his resignation it was, by virtue of a City ordinance, irrevocable [R22, Harris Dep.65; Dep.Ex.4].
Later, Schluter decided he did not want to make a career with the Norfolk Southern Corporation. After working for it for about three months, he left its employ [R22, Schluter Dep.17-19].
On January 31, 2000 Schluter sent Harris a letter requesting that he be allowed to return to work as a police officer. In his letter he pointed out that the Department had not been successful with minority recruitment and he could fill a void within the Department [R22, Dep.Ex.5].
On February 14, 2000 Harris wrote to Schluter acknowledging that he had received Schluter’s letter. He informed Schluter he would look into Schluter’s request. Harris checked with the Department of Human Resources concerning that request and was informed that in order for Schluter to return to the Department City Council action would probably be necessary [R22, Harris Dep.39-40; Dep.Ex.8].
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At the time he received Schluter’s letter, Harris felt that there was a need for African-American officers on the Department. The fact that Schluter was a qualified black officer who could immediately be placed in a police position was a factor in his desire to return Schluter to the Department without requiring him to go through the normal hiring process [R22, Ex.19,pp.25-27].
Chief Harris discussed the Schluter situation with Frank McNeil, a black City alderman. McNeil believed that the only way Schluter could be reinstated was by the adoption of an ordinance. He was aware that Schluter could not be reinstated because of an existing City ordinance. McNeil felt that the barrier for Schluter returning to the Department was a disservice to the community because of the need for qualified minority officers [R22, McNeil Dep.22-23,39-40; Harris Dep. 45]. McNeil understood that Chief Harris could not grant a retroactive leave of absence without the City Council enacting an ordinance. He was also aware that under City ordinances a leave of absence could not be granted for an employee who left the City to work in the private sector [R22, McNeil Dep.43-44].
On March 28, 2000 the Springfield City Council enacted an ordinance sponsored by McNeil granting Schluter a retroactive leave of absence. The ordinance permitted Schluter to return to his position as a police patrol officer. The face of the ordinance recited that it was in the public interest to have diversity in the ranks of the Springfield Police Department [R33, Dep.Ex.3A]. The ordinance was enacted in furtherance of Harris’ request that Schluter be allowed to return to the Department and applied only to Schluter. Another officer wanting to return to
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work with the Department could not return without the enactment of a similar ordinance. The Schluter ordinance did not amend any existing provision of the City Code, but merely granted a retroactive leave of absence to Schluter [R22, Harris Dep.47; McNeil Dep.30-31,48; Dep.Ex.3d].
Upon the enactment of the ordinance, Schluter was allowed to return to his position as a police patrol officer without going through the normal pre-hiring process. He was allowed to retain his prior years of service with the Department. Unlike the Officers, he did not forfeit his prior years of service upon returning to the City and, when he returned to work, he received the same rate of pay that he had when he resigned [R22, Kliment Dep.20-21,24].
F) The Litigation Over The Schluter Ordinance. On April 11, 2000, shortly following the enactment of the Schluter ordinance, the Union initiated a lawsuit against both the City and Schluter challenging the enactment of the ordinance. It claimed that the ordinance was unconstitutional, unreasonable, discriminatory and an abuse of legislative discretion by the City Council. It requested that the ordinance be set aside [R22, Kliment Dep.31]. The Officers became aware of that lawsuit. They understood that if the lawsuit was successful the ordinance would be set aside and Schluter would lose the credit he had received for his earlier years of service [R22, Groesch Aff.16; Allin Aff.15]. On August 17, 2001 the Circuit Court of Sangamon County, Illinois, decided the Union’s lawsuit. It found in favor of the Union and concluded that the ordinance, in providing special benefits only to Schluter, was an unreasonable
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classification. On April 26, 2002 the Illinois Appellate Court for the Fourth District
reversed the decision of the Circuit Court. It concluded that the Union lacked the necessary standing to maintain a lawsuit challenging the ordinance [Springfield Policemen’s Benevolent & Protective Association, Unit No. 5 v. City of Springfield, 328 Ill. App.3d 1107, 817 N.E.2d 228 (4th Dis.2002)].
G) The Officers’ Attempt To Secure Treatment Similar To Schluter’s. Following the decision of the Appellate Court, the Officers sent a memorandum to Chief Harris. They brought to his attention that Schluter had been allowed to return to the Department with no loss of seniority and at the same wage rate as when he left. They informed Harris that, like Schluter, they had left the Department in good standing and later returned, but unlike Schluter, were not restored to their prior seniority and given the same wage rate as when they left. They requested that they be treated like Schluter and be credited with their prior years of service for purposes of determining their wage rate and benefits [SA11]. Chief Harris did not respond to their request. He was aware that if they had been given their prior years of service then each would have received the same benefit that was provided to Schluter. Chief Harris was not aware of anything which would have prohibited the City Council from adopting an ordinance giving the Officers what they were requesting [R22, Harris Dep.66-68,72]. H) The Proceeding In The District Court. On July 27, 2004 the Officers filed their complaint against the City in the
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District Court [R1]. The gravamen of their claims of race discrimination was the preferential treatment give to Schluter when he returned to employment with the City under an arrangement in which he was given credit for his prior years of service. In their complaint the Officers claimed that: a) the salary of police patrol officers was determined by their longevity of service and their salary increased with their seniority [¶6]; b) upon becoming re-employed as police patrol officers, they were given no credit for their prior years of service in determining their salary and fringe benefits. Instead, they were treated as if they had never before worked for the City [¶7]; c) because they were not given credit for their prior years of service, their salary was significantly less and remained significantly less than what it would have been had they been given credit for their prior years of service [¶8]; d) Schluter, in contrast, was, upon returning to employment with the City, given credit for his prior years of service with the City for purposes of determining both his salary and fringe benefits [¶11]; and e) as a result Schluter was compensated with respect to his salary and benefits under an arrangement which provided him significantly greater benefit than the method applied in determining their salary and benefits when they returned to the City’s employ [¶14].
Initially, the City sought the dismissal of the complaint pursuant to Rule 12(b)(6) of the “Federal Rules of Civil Procedure.” Among other things, it claimed that the officers federal claims were barred because of a prior judgment in state court in which they had unsuccessfully sued the City because of the events described earlier.
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The District Court partially agreed with the City. It concluded that the application of res judicata could bar the Officers claims since both the state court proceeding and the proceeding before the District Court arose from the same “core of operative facts” and state courts have concurrent jurisdiction under both Sections 1983 and the Act [SA00012]. The District Court noted, however, that in a case of pay discrimination the City’s violations under both Section 1983 and the Act “arise anew with every paycheck they receive.” It observed that the Officers alleged that with every paycheck they receive less favorable treatment than did Schluter. The District Court, relying upon Hildebrandt v. Illinois Department of Natural Resources, 347 F.3d 1014 (7th Cir.2003) and Reese v. Ice Cream Specialties, Inc., 347 F.3d 1007 (7th Cir.2003), reasoned that each paycheck the City remitted to the Officers creates a separate, discrete discriminatory act. This includes paychecks remitted to them after April 3, 2003, the date they initiated their state court proceeding. It concluded that neither res judicata nor collateral estoppel bars the claims of the Officers with respect to salary payments made after April 3, 2003 because the issue decided in the prior adjudication is not identical to their federal claims arising after that date [SA00012-16].
Following discovery, the City requested summary judgment. It argued that the Officers could establish neither a prima facie claim of race discrimination nor that the City’s reasons for treating Schluter better than they were pretextual. Additionally, it asserted that the Officers’ claims were barred by res judicata,
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collateral estoppel and the applicable statutes of limitation.2 On December 29, 2006 the District Court granted the City’s motion for
summary judgment in part and denied it in part. It concluded that the City was entitled to summary judgment with respect to the Officers’ claim for damages arising prior to November 10, 2003, the date judgment was entered in the state court proceeding, and with respect to Shaffer’s claim for monetary damages accruing prior to January 19, 2005. In all other respects the motion was denied [SA00067].
On February 2, 2007 the Court, with the consent of the parties, stayed the proceeding pending a decision by the Supreme Court in Ledbetter v. Goodyear Tire and Rubber Company, Inc., 421 F.3d 1169 (11th Cir.2005).
Following the decision of the Supreme Court in Ledbetter v. Goodyear Tire and Rubber Company, Inc., 550 U.S. 618, 167 L.Ed.2d 982 (2007), the City renewed its motion for summary judgment.
On July 11, 2007 the District Court, in view of the decision in Ledbetter, vacated its earlier order denying summary judgment and allowed the City’s motion for summary judgment with respect to all of the Officers’ claims. In its opinion, the
2 The City also claimed that, because Shaffer filed a petition seeking bankruptcy relief in January of 2005 and the City thereafter purchased his claims in the federal proceeding from the trustee in bankruptcy, Shaffer was barred from pursuing any claim for monetary damages accruing prior to the date of his bankruptcy filing. For purposes of summary judgment, Shaffer did not dispute the City’s contention on this point and agreed that he has no claim against the City for monetary damages arising prior to the date he filed his bankruptcy petition.
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District Court noted that Ledbetter rejected the “paycheck accrual rule” under which each paycheck represented a separate discriminatory act. It observed that under Ledbetter each paycheck is merely a reflection of a past discriminatory act and is not sufficient to create a new violation of the Act. It reasoned that because of the holding to Ledbetter the Officers claims under both Section 1983 and the Act are barred by res judicata since they could have brought their federal claims of racial discrimination as a part of their state court action [A00009-10].
The District Court further noted that even if the Officers claims under the Act were not barred by res judicata they were untimely because they failed to allege any discrete, discriminatory act that occurred within 300 days of the date they filed their administrative charge of discrimination.
The Court noted that even though the Officers constitutional claims were brought within 2 years of their claimed adverse employment action, they were, nonetheless, barred by res judicata since they could have brought it as a part of the state court action which they initiated in April of 2003. In this respect it observed:
“After Ledbetter, it is clear that this lawsuit arises from the same set of operative facts as the April, 2003, state court action. Thus, even though the Section 1983 claims were filed within the applicable limitations period, they are barred by res judicata” [A00011-12]. The District Court rejected the officers contention that their situation was analogous to the one presented in Bazemore v. Friday, 478 U.S. 385, 92 L.Ed.2d 315 (1986). According to the District Court, Bazemore involved an employer adopting a discriminatory pay structure for African-Americans and Caucasians. It reasoned
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that in the present case there was no discriminatory pay structure like the one presented in Bazemore. Instead, it was a single act that afforded favorable treatment to a single individual [A00012-13].
It is from the foregoing facts that this case finds its way to this Court. V. SUMMARY OF THE OFFICERS’ ARGUMENT
The Ledbetter Act recognizes that a claim for discrimination in compensation can occur in three distinct situations. First, when a compensation decision or practice is adopted. Second, when an individual is subject to a discriminatory compensation decision or practice. Third, when an individual is affected by the application of a discriminatory compensation decision or practice. That law, which applied to claims of discrimination pending on or after May 28, 2007, was intended to overturn the Supreme Court’s decision in Ledbetter. It did not extend the limitation period established by the Act, but instead expanded the situation when unlawful employment practices might occur.
For several reasons, the Ledbetter Act applies to the present case. First, the Officers case was pending on May 28, 2007 and that act retroactively applies to cases pending on that date. The District Court’s reconsideration of the City’s motion for summary judgment arose because of the Ledbetter decision. Second, the Officers’ claims involve allegations of discrimination in compensation. In their complaint they allege that Schluter was compensated under a method providing him significantly greater benefits than the method used in determining their salary and benefits. In this respect the Officers’ claims are, in
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significant respects, similar to those which arose in the Ledbetter case. At least with respect to the backpay claims of the Officers arising after the
judgment in the state court proceeding, their claims should not be barred by res judicata in view of the Ledbetter Act.
Prior to Ledbetter, this Court recognized that a fresh cause of action for discrimination in compensation occurred each time a plaintiff received a paycheck resulting from a discriminatory compensation practice. Because the Ledbetter Act recognizes that a discrete and separate cause of action occurs each time an individual receives such a paycheck, the paycheck accrual method has been restored by statute. Thus, claims arising out of payments received by the Officers following the state court judgment represent new causes of action which are not barred by the doctrine of res judicata.
Prior to Ledbetter, this Court recognized that the paycheck accrual theory applied not only to compensation discrimination claims arising under the Act, but also to such claims maintained under § 1983. The District Court applied the Ledbetter analysis to the Officers’ § 1983 claims. Because Congress, in enacting the Ledbetter Act, has essentially vacated the effects of Ledbetter, the pre-Ledbetter decisions of this Court applying the paycheck accrual method to § 1983 claims should be followed.
A federal court must give preclusive effect to a state court judgment under the res judicata doctrine. In Illinois res judicata is an absolute bar in a subsequent action with respect not only to claims actually determined in the prior proceeding,
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but those which could have been raised in that proceeding. The Officers’ claims under the Act could not have been maintained in the earlier state court proceeding. A prerequisite to maintaining a claim under the Act is that a plaintiff: a) file a charge of employment discrimination; and b) secure a right to sue letter. Absent meeting these prerequisites, a claim under the Act must be dismissed. Because the Officers, at the time of the state court proceeding, had not secured permission to institute a judicial proceeding alleging discrimination under the Act, the state court could not have considered that claim. If the Officers could not have asserted in the state court proceeding their claims under the Act, then the judgment in the state court proceeding could not, through the application of res judicata, bar them from pursuing their claims in the District Court under the Act for discriminatory payments prior to the date of the state court judgment. Because the Officers in the state court proceeding did not have a full and fair opportunity to litigate their claims under the Act, the District Court was mistaken to dismiss them by applying the res judicata doctrine.
VI. ARGUMENT A) Standard of Review. The review of a district court's grant of summary judgment is de novo. This Court must review the record and all inferences drawn from it in the light most favorable to the Officers and be persuaded that no genuine issue as to any material fact exists and the moving party as a matter of law is entitled to judgment. Summary judgment is only appropriate when the record reveals that no reasonable
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jury could find for the non-moving party [See Karasanos v. Navistar International Transportation Corp., 948 F.2d 332 (7th Cir.1991); and Konowitz v. Schnadig Corporation, 965 F.2d 230 (7th Cir.1992)].
B) The Ledbetter Act requires that the judgment of the District Court be reversed.
In pertinent part the Ledbetter Act provides as follows with respect to claims
arising under the Act:
“- - an unlawful employment practice occurs, with respect to discrimination in compensation - - -, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits or other compensation is paid, resulting in whole or in part from such a decision or other practice” [42 U.S.C. § 2000e5(e)(3)(A)].
The Ledbetter Act, which by its terms applies to claims of discrimination in
compensation pending on or after May 28, 2007, was intended by Congress to set
aside the effects of the Supreme Court’s decision in Ledbetter [Schuler v. Price,
Waterhouse Coopers, LLP, 595 F.3d 370, 374 (D.C. Cir.2010)].
The Ledbetter Act did not extend the limitation period established by the Act.
Instead, it expands when “an unlawful employment practice occurs” [Glover v. Sitel
Corporation, 1010 WL 1292146 (W.D. Wis.); Ekweani v. Ameriprise Financial, Inc.,
2010 WL 749648 (D. Ariz.); and 42 U.S.C. § 2000e-5(e)(3)(A)].
By its terms, the Ledbetter Act creates a cause of action for discrimination in
compensation in three separate situations. First, when a discriminatory
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compensation decision or practice is adopted. Second, when an individual becomes subject to a discriminatory compensation decision or practice. Third, when an individual is affected through the application of a discriminatory compensation decision or practice. The third situation occurs each time wages, benefits or other compensation is paid which results in whole or in part from such a decision or practice [42 U.S.C. § 2000e-5(e)(3)(A)].
1) The Ledbetter Act applies to the case at bar. The Ledbetter Act applies to the claims of the Officers. First, as an initial matter, the Officers’ claims were pending on May 28, 2007. The Ledbetter Act retroactively applied to claims pending on that date [Schuler at p.374]. Second, as noted earlier, Congress intended, in adopting the Ledbetter Act, to undo what was created by the Supreme Court’s decision in Ledbetter. It was because of the Ledbetter decision that the City was granted summary judgment. In its July 11, 2007 order the District Court reconsidered its earlier opinion denying the City’s request for summary judgment “in light of Ledbetter” [A5]. In view of Ledbetter, the District Court rejected the notion that a new discriminatory event occurred each time the Officers received a paycheck calculated without crediting them for their earlier service. Accordingly, it concluded that: “Based on Ledbetter, all of plaintiffs’ claims (under Title VII and 42 U.S.C. § 1983) are therefore barred by res judicata” [A10]. It further noted that, even if the Officers’ claims were not barred by res
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judicata, they are, under Ledbetter, untimely at least with respect to those claims maintained under the Act [A11].
Third, the claims of the Officers involve “discrimination in compensation” and are thus covered by the Ledbetter Act. The Officers’ claims are similar in certain key respects to the claim advanced by the employee in Ledbetter.
According to the Ledbetter plaintiff, during the time she worked for her employer salaried employees were granted or denied salary increases based upon supervisory evaluations of their performance. According to her, during her course of employment, several supervisors had given her poor evaluations which she claimed occurred because of her sex. As a result of these evaluations, her pay was not increased as much as it would have been had she been evaluated fairly. She claimed that those past pay decisions “continued to affect the amount of her pay throughout her employment” [Ledbetter at pp. 618-619].
Like the Ledbetter plaintiff, the Officers claim that they were paid less than what they would have received had they been treated in the same manner as the African-American officer.
It is clear from the text of their complaint that the Officers claim that they were the victims of race discrimination with respect to their compensation. They claim that Schluter, an African-American, upon returning to his employment with the City “was compensated with respect to salary and benefits under a method which provided him significantly greater benefit than the method applied in determining the salary and benefits of the Plaintiffs when each of them returned to
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employment with the City” [R1 ¶12]. The Officers presented evidence that under the City’s compensation system
for its police patrol officers longevity in service had much to do in determining the level of an officer’s salary. The longer an officer worked for the City, the higher his salary rate. Thus, an officer working for the City for eight years would be paid a greater salary than an officer who had worked for a year or less [SA73 ¶10, R22, Ex. 4 p.28, Ex.5,p.23]. At the time each of the Officers left the City, he had accrued a number of years of service. When he returned to work as a patrol officer for the City, his salary was not calculated based upon what it was when each left the City. Instead, each had to start over as if he had never before worked for the Department [R22, Groesch Aff. 12]. He earned less because he was not credited with his prior years of service. By contrast, Schluter, upon returning to the City, did by virtue of an ordinance enacted for his benefit receive the same salary as the one he enjoyed at the time he left. Unlike the Officers, he did not have to start over [R22, Kliment Dep.20-21,24]. The affect of this disparity lingered with the Officers since each paycheck they received, after returning to work with the City, was calculated on the basis of years of service with the City he had been credited.
The claims of the Officers relate to the application of a discriminatory compensation practice. Each time they receive a wage payment or fringe benefit calculated without giving them their prior years of service, they were affected by that practice.
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2) Because of the Ledbetter Act, the Officers’ claims are not barred by res judicata. This Court has recognized that the doctrine of res judicata requires litigants to join in a single suit all legal and remedial theories that concern a single transaction. Claims based upon the same or nearly the same factual allegations must be joined. However, if the wrongful events are separated by time and function, multiple suits are permissible [Perkins v. Board of Trustees of the University of Illinois, 116 F.3d 235, 236-237 (7th Cir.1997)]. In other words, wrongful events separated by time or function are not considered a single transaction. Prior to the Ledbetter decision, a body of federal law recognized that with respect to salary and pay discrimination each salary and benefit payment represents a separate and discrete act of discrimination triggering a new limitation period. In National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 153 L.Ed.2d 106 (2002), a claim arising under the Act, the Supreme Court considered when a cause of action involving a series of separate, discrete acts of discrimination begins to accrue. The Morgan Court recognized that each discrete act must be filed in timely fashion. It further recognized that each discrete discriminatory act “starts a new clock for filing charges.” It stated: “The existence of past acts and the employee’s prior knowledge of their occurrence, however, does not bar employees from filing charges about related discrete acts so long as the acts are independently discriminatory and charges addressing those acts are themselves
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timely filed. Nor does the statute bar an employee from using the prior acts as background evidence in support of a timely claim” [Morgan, 536 U.S. at 113]. Relying upon Morgan, this Court, before Ledbetter, considered when a cause of action arises in a claim of wage discrimination. In Hildebrandt v. Illinois Department of Natural Resources, 347 F.3d 1014, 1029 (7th Cir.2003), it concluded that each payment made to an employee which was the product of discrimination was a discrete act triggering the statute of limitations. Relying upon both Morgan and Bazemore v. Friday, 478 U.S. 385, 92 L.Ed.2d 315 (1986), the Hildebrandt court reasoned that each discriminatory paycheck represented a separate discriminatory act giving rise to a separate actionable claim. In Reese v. Ice Cream Specialties, Inc., 347 F.3d 1007 (7th Cir.2003), it concluded that: “Bazemore compels the conclusion that each paycheck constituted a fresh act of discrimination, and thus his suit is not untimely solely because the initial act of discrimination occurred when it did” [pp.103104]. The Ledbetter Act essentially adopts this concept. By its terms, each time an employee receives wages, benefits or other compensation resulting from a discriminatory decision or practice, he is affected by the application of that decision or practice. In such a situation a new unlawful employment practice occurs [42 U.S. C. § 2000e-5(e)(3)(A)]. Prior to the Supreme Court’s decision in Ledbetter, the District Court, relying upon Hildebrandt and Reese, concluded that the state court judgment did
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not bar the claims of the Officers with respect to compensation received as a result of discrimination after the entry of the state court judgment because paychecks received after that time represented separate and new causes of action [SA14-16, 67].
The Ledbetter Act essentially vacates the holding in Ledbetter by recognizing that a discrete and separate cause of action occurs each time an individual receives a paycheck as a result of a discriminatory compensation decision practice. The District Court’s initial res judicata analysis with respect to compensation received after the state court judgment is consistent with both Morgan and the body of law developed by this Court before Ledbetter and should, in view of the Ledbetter Act, be followed.
3) The Officers’ claims under the Equal Protection Clause should be reinstated. Both this Court as well as other Circuits have recognized that in situations where a plaintiff maintains under § 1983 a claim parallel to one maintained under the Act judicial decisions construing the Act and its limitation rules applies equally to claims maintained under § 1983. This approach arose because there is the lack of a “principled basis” to restrict judicial precedent to only claims maintained under the Act [see Hildebrandt at footnote 18, p.1036; Sharpe v. Cureton, 319 F.3d 259, 267 (6th Cir.2003); and R.K. Ventures, Inc. v. City of Seattle, 307 F.3d 1045, 10581061 (9th Cir.2002)]. There is no principled reason for applying the paycheck accrual theory to claims arising under the Act, but not to those maintained under §
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1983. Prior to Ledbetter, this Court recognized that the paycheck accrual theory
applied not only to claims arising under the Act, but also to claims maintained under § 1983 [see Hildebrandt at p.1036 and footnote 18].
Although the Ledbetter decision arose in a claim maintained under the Act and not § 1983, the District Court, nonetheless, applied its rationale in granting summary judgment to the Officers’ claims under the Equal Protection Clause. After Ledbetter, it concluded that the Officers’ § 1983 claims were barred by res judicata [A11-12].
Initially, the District Court, relying upon Hildebrandt, applied the paycheck accrual approach to the Officers’ claims under the Equal Protection Clause as well as to their claims under the Act [SA15-16]. The Ledbetter Act essentially vacates the effectiveness of Ledbetter. The initial analysis of the District Court, in applying the paycheck accrual method to § 1983 claims was sound and consistent with the holding in Hildebrandt.
C) The District Court mistakenly applied the res judicata doctrine in dismissing the Officers’ claims arising before the entry of the state court judgment. The District Court, in its initial summary judgment order, granted summary judgment to the City with respect to the Officers’ claims for damages arising prior to the entry of a state court judgment on November 10, 2003 [SA67]. Earlier, it reasoned that the judgment entered in the state court proceeding dismissing the Officers’ claims against the City arose out of the same “core of operative facts” as
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their federal claims. Because state courts have concurrent jurisdiction over claims arising under both the Act and 42 U.S.C. § 1983, the Officers’ claims prior to the entry of the state court judgment were barred under the doctrine of res judicata [SA8-12].
28 U.S.C. § 1738 requires federal courts to give the same preclusive effect to state court judgments that those judgments would be given in the courts of the state from which they emerged if: 1) under the law of the forum state the claim would be barred by the doctrine of res judicata; and 2) the party against whom the earlier decision is asserted as a bar had a full and fair opportunity to litigate the claim or issue [see Allen v. McCurry, 449 U.S. 90, 66 L.Ed.2d 308 (1980); Kramer v. Chemical Construction Corp., 456 U.S. 461, 72 L.Ed.2d 262 (1982); and Migra v. Warren City School District, Board of Education, 465 U.S. 75, 79 L.Ed.2d 56 (1984)].
Because the Officers could not have litigated their claims arising under the Act against the City in the state court proceeding, the District Court was mistaken in dismissing their claim for damages prior to the state court judgment under the res judicata doctrine.
Res judicata in a claim preclusion sense in Illinois operates as an absolute bar to a subsequent action with respect not only to claims actually determined, but those which could properly have been raised as well in the earlier proceeding. It is a judicially created doctrine resulting from the practical necessity that there be an end to litigation [see Hughey v. Industrial Commission, 76 Ill.2d 577, 394 N.E.2d
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1164 (1979); Best Coin-Op, Inc. v. Paul F. Ilg Supply Company, Inc., 189 Ill.App.3d 638, 545 N.E.2d 481 (1st Dis.1989); Henry v. Farmer City State Band, 808 F.2d 1228 (7th Cir.1986); and Gasbarra v. Park-Ohio Industries, Inc., 655 F.2d 119 (7th Cir. 1981)].
In Illinois, the doctrine of res judicata provides that a final judgment on the merits rendered by a court of competent jurisdiction is conclusive as to the rights of the parties and their privies, and as to them constitutes an absolute bar to a subsequent action involving the same claim, demand, or cause of action [Licari v. City of Chicago, 298 F.3d 664, 666 (7th Cir.2002); and Nowak v. St. Rita High School, 197 Ill.2d 381, 757 N.E.2d 471 (2001)]. The bar created by the disposition of the first action extends not only to what was actually decided in that proceeding, but to what could have been decided as well [River Park, Inc. v. City of Highland Park, 184 Ill.2d 290, 703 N.E.2d 883 (1998)].
Res judicata applies where: 1) a final judgment on the merits is rendered by a court of competent jurisdiction; 2) there is an identity of the causes of action; and 3) there is an identity of parties or their privies [see for example, Downing v. Chicago Transit Authority, 162 Ill.2d 70, 73-74, 642 N.E.2d 456 (1994); River Park, Inc. at p.302; People v. Dejesus, 127 Ill.2d 485, 537 N.E.2d 800 (1980); and Best Coin-Op, Inc. v. Paul F. Ilg Supply Company, Inc. (op.cit. 1989)].
When the state court proceeding was pending, the Officers could not have joined their claims under the Act since they had not, at that time, secured the necessary permission to institute such a claim [R8].
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A plaintiff bringing a claim under the Act must satisfy certain administrative requirements before filing a claim in court. First, he must file a charge with the United States Equal Employment Opportunity Commission [“EEOC”] which encompasses all claims he would later raise in the court proceeding [Cheek v. Western and S. Life Insurance, 31 F.2d 497, 488 (7th Cir.1994)]. He must then receive a right to sue letter [42 U.S.C. § 2000e-5(f)(1)]. Second, he must file a complaint in court within 90 days following the date he receives a right to sue letter [see 42 U.S.C. §§ 20003-5(b), (e), and (f); and Schnellbaecher v. Baskin Clothing Co., 887 F.2d 124, 129 (7th Cir.1989)].
If the EEOC has not issued a right to sue letter, these requirements are not met, and the action is premature and must be dismissed [EEOC v. Harris Chernin, Inc., 10 F.3d 1286, 1288 n.3 (7th Cir.1993)].
If the Officers had alleged violations of the Act in the state court proceeding with a right to sue letter, the state court would have had to dismiss that claim [see EEOC v. Harris Chernin, Inc., 10 F.3d 1286, 1288 n.3 (7th Cir.1993); and Sherman v. Standard Rate Data Service, Inc., 709 F.Supp. 1433, 1437 (N.D. Ill. 1989)]. The court has no obligation to allow the case to proceed further [Gibson v. Kroger Company, 506 F.2d 647, 652 (7th Cir.1974) (holding that lawsuit was properly dismissed where plaintiff filed suit before receiving right to sue letter)]. The requirements of a right to sue letter is a condition precedent to the filing of the lawsuit in the first instance [Perkins v. Silverstein, 939 F.2d 463, 470 (7th Cir. 1991)].
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At the time the Officers’ state law claims were before the Circuit Court, they did not have the permission required under the Act to institute a court proceeding. Because the Officers lacked that permission, res judicata cannot be invoked to bar their claims under the Act [see Green v. Illinois Department of Transportation, 609 F.Supp. 1021, 1025 (C.D. Ill. 1985)]. The bedrock principle of the claim preclusion doctrine is that a plaintiff be limited to one full and fair opportunity to litigate his claim [Allen at pp.94-96]. For the reasons noted above the Officers were deprived of that opportunity with respect to claims arising under the Act.
VII. CONCLUSION For the reasons more fully stated above, the Plaintiffs-Appellants, Kevin Groesch, Greg Shaffer, and Scott Allin, respectfully request that this Court reverse the decision of the District Court granting the City's summary judgment and remand this case to it for purposes of trial.
KEVIN GROESCH, GREG SHAFFER AND SCOTT ALLIN
By:_____________________________ One of their Attorneys
James P. Baker Bar #: 0097802 Baker, Baker & Krajewski, LLC 415 South Seventh Street Springfield, Illinois 62701 Phone: (217) 522-3445 Fax: (217) 522-8234 email: bschrader2@gmail.com
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NO. 07-2932 IN THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

KEVIN GROESCH, GREG SHAFFER )

and SCOTT ALLIN,

)

)

Plaintiffs-Appellants, )

)

v.

)

)

THE CITY OF SPRINGFIELD,

)

ILLINOIS, a municipal corporation, )

)

Defendant-Appellee. )

On Appeal from a judgment of the United States District Court for the Central District of Illinois, Springfield Division Case No. 04 CV 3162 Hon. Jeanne E. Scott, Presiding

CERTIFICATE OF COMPLIANCE

COME NOW the Appellants, Kevin Groesch, Greg Shaffer and Scott Allin, and in compliance with Circuit Rule 32(d)(2) states that the initial brief of the Appellants complies with the type volume limitation. The initial brief contains 8170 words according to the count of the word processing program WordPerfect used by counsel for the Appellants.

Kevin Groesch, Greg Shaffer and Scott Allin

September 15, 2010
James P. Baker Baker, Baker & Krajewski, LLC 415 South Seventh Street Springfield, Illinois 62701 (217) 522-3445

BY:_________________________________ JAMES P. BAKER

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Case: 07-2932 Document: 17-1 Filed: 09/16/2010 Pages: 39

NO. 07-2932 IN THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

KEVIN GROESCH, GREG SHAFFER )

and SCOTT ALLIN,

)

)

Plaintiffs-Appellants, )

)

v.

)

)

THE CITY OF SPRINGFIELD,

)

ILLINOIS, a municipal corporation, )

)

Defendant-Appellee. )

On Appeal from a judgment of the United States District Court for the Central District of Illinois, Springfield Division Case No. 04 CV 3162 Hon. Jeanne E. Scott, Presiding

CIRCUIT RULE 31(e) CERTIFICATION

The undersigned hereby certifies that I have filed electronically pursuant to Circuit Rule 31(e), all of the appendix items that are available in non-scanned PDF format.

Kevin Groesch, Greg Shaffer and Scott Allin

September 15, 2010
James P. Baker Baker, Baker & Krajewski, LLC 415 South Seventh Street Springfield, Illinois 62701 (217) 522-3445

BY:___________________________________ JAMES P. BAKER

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Case: 07-2932 Document: 17-1 Filed: 09/16/2010 Pages: 39

NO. 07-2932 IN THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

KEVIN GROESCH, GREG SHAFFER )

and SCOTT ALLIN,

)

)

Plaintiffs-Appellants, )

)

v.

)

)

THE CITY OF SPRINGFIELD,

)

ILLINOIS, a municipal corporation, )

)

Defendant-Appellee. )

On Appeal from a judgment of the United States District Court for the Central District of Illinois, Springfield Division Case No. 04 CV 3162 Hon. Jeanne E. Scott, Presiding

CERTIFICATE OF SERVICE

The Plaintiffs-Appellants, Kevin Groesch, Greg Shaffer and Scott Allin, hereby certify that on September 15, 2010, three copies of the Brief and Required Short Appendix of Appellants as well as a digital version containing the brief, were delivered by United States Mail from the office of the undersigned to counsel for the DefendantAppellee, at the following address:

Jennifer Johnson Frank Martinez Office of the Corporation Counsel Municipal Building East, #313 800 East Monroe Street Springfield, Illinois 62701

Kevin Groesch, Greg Shaffer and Scott Allin

James P. Baker Baker, Baker & Krajewski, LLC 415 South Seventh Street Springfield, Illinois 62701 (217) 522-3445

By:_________________________________ Their Attorney

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 Case: 07-2932 Document: 21 Filed: 10/20/2010 Pages: 26
NO. 07-2932 IN THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

KEVIN GROESCH, GREG SHAFFER, )

and SCOTT ALLIN,

)

)

Plaintiffs-Appellants,

)

)

v.

)

)

CITY OF SPRINGFIELD, ILLINOIS,

)

a municipal corporation,

)

)

Defendant-Appellee.

)

Appeal from the United States District Court For the Central District of Illinois, Springfield Division
Case No. 04-CV-3162 The Honorable Judge Jeanne E. Scott

BRIEF OF THE DEFENDANT-APPELLEE

City of Springfield, Illinois

Office of Corporation Counsel

Room 313, Municipal Center East

800 E. Monroe Street

Springfield, IL 62701-1689

Telephone: (217) 789-2393

Fax:

(217) 789-2397

Email: Frank.Martinez@cwlp.com

CITY OF SPRINGFIELD, ILLINOIS Frank Martinez Assistant Corporation Counsel Attorney for Defendant-Appellee

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TABLE OF CONTENTS TABLE OF CONTENTS ..................................................................................... i TABLE OF AUTHORITIES................................................................................ ii JURISDICTIONAL STATEMENT....................................................................... 1 STATEMENT OF ISSUES PRESENTED FOR REVIEW ...................................... 1 STATEMENT OF FACTS .................................................................................. 1 SUMMARY OF ARGUMENT ............................................................................. 4 ARGUMENT .................................................................................................... 5
A. STANDARD OF REVIEW FOR SUMMARY JUDGMENT.................. 5 B. THE LILLY LEDBETTER FAIR PAY ACT IS NOT
APPLICABLE TO THE PLAINTIFFS................................................ 7 C. THE PLAINTIFFS’ CLAIMS ARE NOT SIMILAR TO THE
EMPLOYEE IN LEDBETTER ........................................................ 10 D. THE PLAINTIFFS’ CLAIMS ARE BARRED BY RES JUDICATA ...... 12 E. THE RIGHT TO SUE LETTER DID NOT PREVENT THE
PLAINTIFFS FROM BRINGING THEIR CLAIMS IN STATE COURT ........................................................................... 17
CONCLUSION ............................................................................................... 18 Certificate of Compliance With F.R.A.P. Rule 32(a)(7)..................................... 20 Circuit Rule 31(e) Certification ...................................................................... 21 Proof of Service ............................................................................................. 22
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TABLE OF AUTHORITIES Cases Abramson v. University of Hawaii, 594 F.2d 202, 209 (9th Cir. 1979).............. 9 Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980) .... 13 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513 (1986) ....................................................................... 5, 6 AT&T Corp. v. Hulteen, 129 S.Ct. 1962, 1973 (2009)...................................... 9 Brzostowski v. Laidlaw Waste Sys., Inc., 49 F.3d 337, 339 (7th Cir. 1995) ......................................................................................... 17, 18 Buscaglia v. U.S., 25 F.3d 530, 534 (7th Cir. 1994)......................................... 6 Buckley Dement, Inc. v. Travelers Plan Administrators of Illinois, Inc., 39 F.3d 784, 787 (7th Cir. 1994) .................................................................... 6 Car Carriers, Inc. v. Ford Motor Co., 789 F.2d 589, 593 (7th Cir. 1986)...... 12, 14 Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986).... 5, 6 Crop-Maker Soil Servs., Inc. v. Fairmount State Bank, 881 F.2d 436, 438 (7th Cir. 1989) ............................................................... 13 Delaware State College v. Ricks, 449 U.S. 250 (1980)................................... 8, 9 Doe v. Allied-Signal, Inc., 985 F.2d 908, 913 (7th Cir. 1993).......................... 14 Donovan v. Estate of Fitzsimmons, 778 F.2d 298, 301 (7th Cir. 1985) ........... 13 Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 398, 101 S.Ct. 2424, 69 ................................................................................. 13, 14 Hildebrandt v. Illinois Department of Natural Resources, 347 F.3d 1014 (7th Cir. 2003) L.Ed.2d 103 (1981) .............................................................. 14 Huon v. Johnson & Bell, Ltd., 2010 WL 3404967, (N.D.Ill. 2010) ................. 17 Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007) ........... 8, 10, 11 Liberles v. County of Cook, 709 F.2d 1122 (7th Cir. 1983) ............................ 16
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Case: 07-2932 Document: 21 Filed: 10/20/2010 Pages: 26 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986) ....... 6 Maher v. FDIC, 441 F.3d 522, 526 (7th Cir. 2006)......................................... 13 Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) ............................................ 8, 11, 17 Perkins v. Board of Trustees of the University of Illinois, 116 F.3d 235 (7th Cir. 1997) ........................................................................ 14 Reese v. Ice Cream Specialities, Inc., 347 F.3d 1007 (7th Cir. 2003) .............. 14 Richards v. Johnson & Johnson, Inc., 2009 WL 1562952, at *9 (D.N.J. 2009) . 8 Rogers v. City of Chicago, 320 F.3d 748, 752 (7th Cir. 2003).......................... 5 Speer v. Mountaineer Gas Co., 2009 WL 2255512 (N.D.W.Va. 2009)............. 16 United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885 (1977).......... 14, 15 Waldridge v. American Hoechst Corp., 24 F.3d 918, 920-21 (7th Cir. 1994) ..... 6
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JURISDICTIONAL STATEMENT The Defendants-Appellees agree that the jurisdictional summary provided by the Plaintiff-Appellant is complete and accurate.
STATEMENT OF ISSUES PRESENTED FOR REVIEW Did the District Court correctly rule that the evidence presented no genuine issue of material fact and that it was appropriate to enter summary judgment in favor of the City of Springfield? Should the Ordinance passed by the Springfield City Council be considered a discriminatory compensation decision or a discrete act of discrimination which falls outside the Lilly Ledbetter Fair Pay Act?
STATEMENT OF FACTS Plaintiffs (collectively hereinafter “Plaintiffs”) Kevin Groesch (hereinafter “Groesch”), Greg Shaffer (hereinafter “Shaffer”) and Scott Allin (hereinafter “Allin”) are white police officers employed by the City of Springfield, Illinois, (hereinafter “City”). Each officer was previously employed by the City, left employment with the City for an extended time and returned at a later date. Upon their return, Plaintiffs were not given credit for their prior years of service for purposes of seniority, pay or benefits. Donald A. Schluter (hereinafter “Schluter”) is an African-American police officer employed by the City. Schluter was previously employed by the City, left employment with the City for a short period of time and returned at a later date. Upon Schluter’s return, an Ordinance was passed by the City Council allowing Schluter to receive credit for his prior years of service for purposes of seniority, pay and benefits.
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Groesch began employment with the Springfield Police Department in June 1981. [R19, Ex. A-3]. Groesch obtained a sixty-day leave of absence in December 1988. [R19, Ex. A-3]. Groesch did not return to the Springfield Police Department at the conclusion of his leave. [R19, Ex. A-3]. Groesch returned to employment with the Springfield Police Department on September 10, 1996. [Ex. B]. Based upon the lack of the exact date when Groesch was granted his sixty-day leave, it is assumed, taking the facts in the light most favorable to Groesch, that the date is December 31, 1988. Therefore, there was a gap of 2,750 days during which Groesch was not employed by the Department . [R19, Ex. A-3, B].
Shaffer began employment with the Springfield Police Department in January 1980. [R19, Ex. A-1, D]. Shaffer left the Department in July 1987. [R19, Ex. A-1, D]. Shaffer requested, but was denied, a leave of absence when he left. [R19, Ex. A-1]. Shaffer returned to employment with the Department on July 6, 1993. [R19, Ex. C]. Based upon the lack of the exact date when Shaffer left the Department, it is assumed, taking the facts in the light most favorable to Shaffer, that the date is July 31, 1987. Therefore, there was a gap of 2,167 days during which Shaffer was not employed by the Department. [R19, Ex. A-1, C, D].
Allin began employment with the Springfield Police Department on January 7, 1980. [R19, Ex. E]. Allin left the Department on November 22, 1986. [R19, Ex. F]. Allin requested, but was denied, a leave of absence when he left. [R19, Ex. G], Allin returned to employment with the Department on
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January 9, 1989. [R19, Ex. H]. Therefore, there was a gap of 779 days during which Allin was not employed by the Department. [R19, Ex. E, F, G, H].
Schluter began employment with the Springfield Police Department on April 4, 1994. [R19, Ex. I]. Schluter left the Department on November 12, 1999. [R19, Ex. J, K]. Schluter requested, but was denied, a leave of absence when he left the Department. [R19, Ex. L, O]. Schluter returned to employment with the Department on March 29, 2000; therefore, there was a gap of 139 days during which Schluter was not employed by the Department. [R19, Ex. J, K, L, M, N, O].
Schluter was given a retroactive leave of absence by the City of Springfield City Council, pursuant to Ordinance 198.3.00. [R19, Ex. N-1 to N3]. The City Council determined that the retroactive leave of absence for Schluter was justified because 1) Schluter was an officer in good standing when he voluntarily left the Department; 2) there was a need for police officers; 3) there was no Eligibility List in place from which to hire; 4) the Police Chief desired to return Schluter to service; 5) the City would save $2,200.00 by not sending Schluter to the Police Academy; 6) the City would save $350.00 for pre-employment medical screening; 7) the City would save $352.00 for preemployment psychological screening; 8) it was in the public interest and furthered the goal of public safety to have qualified individuals serving as police officers for the City; and 9) it is in the public interest to have diversity in the police force. [R19, Ex. N-2, N-3].
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SUMMARY OF ARGUMENT The Lilly Ledbetter Fair Pay Act of 2009 is not applicable to the Plaintiffs. The alleged discrete discriminatory act occurred when the City Council passed an ordinance allowing Schulter to be credited with his prior years of service on March 29, 2000. This is when the alleged discriminatory act was adopted by the City and when the Plaintiffs became subject to and were affected by the ordinance. Thus, the two year statute of limitations for the Plaintiffs’ claims expired on March 29, 2002, but the Plaintiffs did not file their Complaint until April 3, 2003. Furthermore, the Plaintiffs do not allege that the seniority system used to pay officers and accrue benefits is discriminatory on its face. The Plaintiffs claims are barred by the doctrine of res judicata. The Plaintiffs could have brought their reverse discrimination claims (Title VII and 42 U.S.C. Section 1983) as part of their April 3, 2003, state court action, but failed to do so. The failure to do so by the Plaintiffs bars the reverse discrimination claims from being litigated. The operation of a non-discriminatory seniority system that forms the basis for pay and benefits constituted an intervening cause which locked in Plaintiffs’ reduced salary and benefits. The impact of such seniority system could not be subjected to liability unless the Plaintiffs proved that the system itself was intentionally discriminatory. The Plaintiffs in the case at bar do not argue that the pay and benefit scheme used by the Police Department was discriminatory. The Plaintiffs’ Complaint focuses on the fact that pay and benefits are determined based upon length of employment [R1, Complaint, ¶9a-
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d], and that because Plaintiffs were not given credit for their prior service, they did not receive the same treatment as Schulter.
The Plaintiffs’ failure to obtain a right-to-sue letter from the EEOC does not escape the effects of the doctrine of res judicata. The Plaintiffs could have delayed the filing in state court or they could have stayed the proceedings in state court in order to obtain the right-to-sue letter. Additionally, the state court provided the Plaintiffs an adequate forum in which they could have brought Title VII, Section 1983 and equal protection claims, though they chose not to do so
ARGUMENT A. STANDARD OF REVIEW FOR SUMMARY JUDGMENT This Court’s review of the district court’s grant of summary judgment is de novo. See Rogers v. City of Chicago, 320 F.3d 748, 752 (7th Cir. 2003). A court must grant summary judgment if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986). In conducting this inquiry “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513 (1986). However, not every dispute over the facts can foil summary judgment; only ones “that might affect the outcome of the suit under the governing law will
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properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. In addition, the United States Supreme Court has held in several cases that if the non-movant does not come forward with evidence that would reasonably permit the finder of fact to find in her favor on a material question, then the court must enter summary judgment against him. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986); Celotex Corp., 477 U.S. at 322-24, 106 S.Ct. at 2552-53; Anderson, 477 U.S. at 249-252, 106 S.Ct. at 2510-12; see also Waldridge v. American Hoechst Corp., 24 F.3d 918, 920-21 (7th Cir. 1994). The non-movant may not rely upon mere allegations, but must present specific facts to show that a genuine issue of material fact exists. Celotex, 477 U.S. at 322-26, 106 S.Ct. at 2552-54; Buscaglia v. U.S., 25 F.3d 530, 534 (7th Cir. 1994).
Summary judgment is appropriately entered “‘against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.’” Buckley Dement, Inc. v. Travelers Plan Administrators of Illinois, Inc., 39 F.3d 784, 787 (7th Cir. 1994)(quoting Celotex Corp., 477 U.S. at 322, 106 S.Ct. at 2552). “The mere existence of a scintilla of evidence in support of the [nonmoving party’s] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party].” Anderson, 477 U.S. at 252, 106 S.Ct. at 2512.
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B. THE LILLY LEDBETTER FAIR PAY ACT IS NOT APPLICABLE TO THE PLAINTIFFS
The Lilly Ledbetter Fair Pay Act of 2009 (hereinafter “Fair Pay Act”) was
enacted on January 29, 2009, and became immediately effective and
retroactive back to May 29, 2007. The law amends four anti-discrimination
laws: Title VII of the Civil Rights Act of 1964, the Age Discrimination in
Employment Act of 1967, Rehabilitation Act of 1974 and the Americans with
Disabilities Act of 1990. The law states:
(3)(A) For purposes of this section, an unlawful employment practice occurs, with respect to discrimination in compensation in violation of this subchapter, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory decision or other practice, or when a individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such decision or other practice.
(B) In addition to any relief authorized by section 1981a of this title, liability may accrue and an aggrieved person may obtain relief as provided in subsection (g)(1), including recovery of back pay for up to two years preceding the filing of the charge, where the unlawful employment practices that have occurred during the charge filing period are similar or related to unlawful employment practices with regard to discrimination in compensation that occurred outside the time for filing a charge. 42 U.S.C. Section 2000e-5(e)(3(A) & (B).
Thus, the Fair Pay Act provides three points at which an unlawful
employment practice with respect to discrimination in compensation occurs: (1)
when a discriminatory compensation decision or other practice is adopted; (2)
when an individual becomes subject to a discriminatory compensation decision
or other practice; or (3) when an individual is affected by application of a
discriminatory compensation decision or other practice. Id. The new law also
authorizes recovery of back pay for up to two years preceding the filing of the
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charge where the unlawful employment practices during the charge filing period are similar to those which occurred outside the charge filing period. Id.
Contrary to the district court’s ruling, the actual act of alleged discrimination occurred when the City passed the ordinance allowing Schluter to be credited with his prior years of service on March 29, 2000. That is when the alleged discriminatory act was adopted by the City and when the Plaintiffs became subject to and were affected by the alleged discriminatory act. See Richards v. Johnson & Johnson, Inc., 2009 WL 1562952, at *9 (D.N.J. 2009) (“While the Act certainly contains expansive language in superseding the holding in Ledbetter….it does not purport to overturn Morgan, and thus does not save otherwise untimely claims outside the discriminatory compensation context”). The two year statute of limitations for Plaintiffs’ claims therefore expired on March 29, 2002. Plaintiffs did not file their Complaint until April 3, 2003. For these reasons, the Lilly Ledbetter Fair Pay Act is not applicable to the Plaintiffs’ claims nor changes the lower court’s ruling.
The passage of the ordinance by the City Council is similar to Delaware State College v. Ricks, 449 U.S. 250 (1980), where the Court held that the denial of academic tenure, the only act alleged to be discriminatory, constituted the unlawful employment practice which began the charge filing period. In Ricks, the Court found that the plaintiff’s failure to file his charge within 300 days of the tenure decision rendered his claim untimely even though his employment formally ended one year later. Given that the plaintiff identified only the denial of tenure as discriminatory, his continuing employment during
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his terminal one-year contract with the college was insufficient to prolong the life of his cause of action. Ricks, 449 U.S. at 267. Thus, the Court held “’the proper focus is upon the time of the discriminatory acts, not upon the time as at which the consequences of the acts became most painful.”’ 449 U.S. at 258 (citing Abramson v. University of Hawaii, 594 F.2d 202, 209 (9th Cir. 1979)). Similarly, the passage of the ordinance by the City Council is the only act that the Plaintiffs are alleging is discriminatory against them.
Further support for the City’s position can be found in AT&T Corp. v. Hulteen, 129 S.Ct. 1962, 1973 (2009), where the Supreme Court held that the plaintiffs’ allegations of sexually discriminatory calculation of pension benefits due to a lower rate of accrual of benefits during pregnancy leave than during other medial leaves were not discriminatory under the Fair Pay Act. The plaintiffs in that case argued that under the Ledbetter Act, the payment of pension benefits at issue in the case marked the moment in which they were affected by discriminatory compensation practices. The Court rejected the plaintiffs’ claim that they were affected by application of the discriminatory compensation decision when they began receiving benefits. The Court reasoned that AT&T’s elimination of the disparity in the accrual rates following passage of the Pregnancy Discrimination Act brought the employer into compliance with the law notwithstanding the continuing impact of the pre-PDA disparate rates on the plaintiffs’ future benefits. Despite the continuing impact of the plaintiffs’ pension from the lower rates they received during maternity leave, the Supreme Court held that the Fair Pay Act did not apply since there
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was no discriminatory conduct at issue. The same analogy can be made to the case at bar. The pay and benefit scheme of the Department has been nondiscriminatory in its application since its inception; therefore, the Fair Pay Act did not apply since there was no discriminatory conduct at issue.
Thus, for the reasons explained above the Fair Pay Act is not applicable to the Plaintiffs’ claims since they have identified an alleged discrete discriminatory act (passage of the ordinance), not a discriminatory compensatory decision. The pay and benefit system used by the Department, which is based on seniority is not discriminatory in its application.
C. THE PLAINTIFFS’ CLAIMS ARE NOT SIMILAR TO THE EMPLOYEE IN LEDBETTER
The Fair Pay Act overturned the holding in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007). In Ledbetter, the Court held that a female managerial employee who claimed that she smaller salary increases than her male counterparts as a result of years of sexually discriminatory evaluations by her supervisors could not use pay checks issued within 180 days of her EEOC charge as the basis for a timely filed claim because the evaluations which caused the salary disparity occurred more than 180-days before she filed her charge. Ledbetter worked for nineteen years and during much of that time raises were given or denied based on supervisory performance evaluations. Ledbetter, 550 U.S. at 621. Ledbetter introduced evidence that several of her supervisors had given her poor evaluation because of her sex and these actions limited her pay increases over the years, diminishing her pay throughout her employment compared with those of her male counterparts regardless of their
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length of service. Ledbetter, 550 U.S. at 622. At the end of her career, Ledbetter filed an EEOC charge against Goodyear using the issuance of paychecks within the charge filing period as the unlawful practice which promoted her claim.
The Supreme Court framed the issue as “[w]hether and under what circumstances a plaintiff may bring an action under Title VII of the Civil Rights Act of 1964 alleging illegal pay discrimination when the disparate pay is received during the statutory limitation period, but is the result of intentionally discriminatory pay decisions that occurred outside the limitations period.” Ledbetter, 550 U.S. at 623. The Court held that Ledbetter’s claim was timebarred because the discriminatory evaluations were past discriminatory activity and the paychecks were subsequent nondiscriminatory acts that entailed adverse effects resulting from the past discrimination. Id. at 632. The Ledbetter Court relied on National Railroad Passenger Corp., v. Morgan, 536 U.S. 101 (2002), definition of a discrete act under Title VII, stating that Morgan instructed finding an EEOC charge begins when the act occurs. Ledbetter, 550 U.S. at 621.
The Plaintiffs argue, like the employee in Ledbetter, they were paid less than what they would have received had they been treated in the same manner as an African-American officer. The facts in the case at bar are not similar to the plaintiff in Ledbetter. In Ledbetter, the plaintiff was subject to employee evaluations that resulted in her receiving less pay than her male counterparts. The Plaintiffs in this case were not subject to sexually discriminatory
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performance evaluations. Furthermore, the Plaintiffs were not denied raises or benefits based upon their gender nor was there a discriminatory motive behind the pay and benefits that the Plaintiffs received compared to Shulter. The reasons identified by the City Council for passing the Ordinance were nondiscriminatory and said ordinance was not passed to in order to harm the Plaintiffs. Specifically, the City Council determined that the retroactive leave of absence for Schluter was justified because 1) Schluter was an officer in good standing when he voluntarily left the Department; 2) there was a need for police officers; 3) there was no Eligibility List in place from which to hire; 4) the Police Chief desired to return Schluter to service; 5) the City would save $2,200.00 by not sending Schluter to the Police Academy; 6) the City would save $350.00 for pre-employment medical screening; 7) the City would save $352.00 for pre-employment psychological screening; 8) it was in the public interest and furthered the goal of public safety to have qualified individuals serving as police officers for the City; and 9) it is in the public interest to have diversity in the police force. [R19, Ex. N-2, N-3]. More importantly, when the Plaintiffs returned to the Police Department after being gone for a number of years, none of these factors were present.
D. THE PLAINTIFFS’ CLAIMS ARE BARRED BY RES JUDICATA As the Plaintiffs correctly assert, the doctrine of res judicata requires litigants to join in a single suit all legal and remedies theories that concern a single transaction. A single transaction is a “common core of operative facts.” Car Carriers, Inc. v. Ford Motor Co., 789 F.2d 589, 593 (7th Cir. 1986). Res
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judicata “serves the interests of judicial economy and finality in disposing disputes by barring both the parties to a judgment and their privies from relitigating the identical cause of action.” Crop-Maker Soil Servs., Inc. v. Fairmount State Bank, 881 F.2d 436, 438 (7th Cir. 1989). To this end, “‘a final judgment on the merits of an action precludes the parties…from relitigating issues that were or could have been raised in that action.’” Donovan v. Estate of Fitzsimmons, 778 F.2d 298, 301 (7th Cir. 1985)(quoting Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980). As the District Court pointed out, the Plaintiffs could have brought their reverse discrimination claims (Title VII and 42 U.S.C. Section 1983) as part of their April 3, 2003, state court action, but failed to do so. The failure to do so by the Plaintiffs bars the reverse discrimination claims from being litigated. See Maher v. FDIC, 441 F.3d 522, 526 (7th Cir. 2006)(“Res judicata also bars litigation of claims that ‘could have been raised’ in the previous litigation, but were not.”).
Three requirements must be met for res judicata to bar a claim: (1) an identity of the parties or their privies; (2) an identity of the causes of actions; and (3) a final judgment on the merits. Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 398, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981). The Plaintiffs and the City were parties in the previous state litigation that rendered a final judgment on the merits. The Plaintiffs had the opportunity to raise their reverse discrimination claims in the state court action.
For res judicata purposes, the Seventh Circuit defines a “cause of action” using the “operative facts” or “same transaction” test under which “a cause of
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action consists of a single core of operative facts giving rise to a remedy.” Doe v. Allied-Signal, Inc., 985 F.2d 908, 913 (7th Cir. 1993)(citation and internal quotation marks omitted). The result is that “[o]nce a transaction has caused injury, all claims arising from that transaction must be brought in one suit or lost.” Allied-Signal, 985 F.2d at 913 (quoting Car Carriers, Inc. v. Ford Motor Co., 789 F.2d 589, 593 (7th Cir. 1986). The Seventh Circuit has explained that the intent of the inquiry is “to discover whether the plaintiff could have raised the issue in the first suit.” Id. (citing Moitie, 452 U.S. at 398). Once the ordinance was passed by the City Council, the Plaintiffs should have filed all their claims in state court and its failure to do so results in a bar from further litigating those claims.
The Plaintiffs rely on Perkins v. Board of Trustees of the University of Illinois, 116 F.3d 235 (7th Cir. 1997), for the proposition if the wrongful events are separated by time and function, multiple suits are permissible. There is only one wrongful event that occurred which forms the basis of this lawsuit-the passage of the ordinance. In addition, there have not been numerous events giving rise to multiple suits.
The Plaintiffs then rely on Hildebrandt v. Illinois Department of Natural Resources, 347 F.3d 1014 (7th Cir. 2003) and Reese v. Ice Cream Specialities, Inc., 347 F.3d 1007 (7th Cir. 2003), for the proposition that each payment made to an employee that was the product of discrimination was a discrete act triggering the statute of limitations. The reliance on these cases is unfounded because in United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885 (1977),
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the Court held that a flight attendant’s claim which alleged that her employer discriminated against her upon rehire by not crediting her with the seniority she earned before she was fired several years earlier pursuant to a discriminatory policy was time barred. The Court reasoned that the plaintiff’s failure to file an EEOC charge within 180/300 days following her discharge meant that the employer’s discriminatory act was the legal equivalent of a discriminatory act committed before the passage of Title VII. Evans, 431 U.S. at 558. In short, Evans held that a discharge is a discrete act which must be challenged within the charge filing period following the act of discharge.
More importantly, the Court rejected the plaintiff’s claim that the seniority system’s continuing impact on her rights and benefits upon reemployment constituted a continuing violation. Id. The Court reasoned that where there is no present violation, the continuing impact of a neutral seniority system did not produce a continuing violation. Id. Thus, the operation of a non-discriminatory seniority system constituted an intervening cause which locked in plaintiff’s reduced salary and benefits. The impact of such seniority system could not be subjected to liability unless the plaintiff proved that the system itself was intentionally discriminatory. Id. at 558-59; 42 U.S.C. Section 2000e-2(h)(703(h)).
The Plaintiffs in the case at bar do not argue that the pay and benefit scheme used by the Police Department (hereinafter “Department”) was discriminatory. The Plaintiffs’ Complaint focuses on the fact that pay and benefits are determined based upon length of employment [R1, Complaint, ¶9a-
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d], and that because Plaintiffs were not given credit for their prior service, they did not receive the same treatment as Schulter. The Plaintiffs’ theory of the case was rejected in Evans and should be by this Court because the pay and benefit scheme itself was not discriminatory. See Liberles v. County of Cook, 709 F.2d 1122 (7th Cir. 1983) (finding liability only because the plaintiffs challenged defendants’ assignment and compensatory policy as being itself discriminatory).
Similarly in Speer v. Mountaineer Gas Co., 2009 WL 2255512 (N.D.W.Va. 2009), the court held that the mere fact that a diminution in or termination of wages results from alleged discriminatory practices did not bring those claims within the scope of the Fair Pay Act. Id., slip op. at 7 & n.6. The court in Speer reasoned that:
Speer does not allege that he was paid differently from others doing the same work because of his age. Rather, he asserts that Mountaineer Gas refused to return him to an M&R job because of his age. This is a discrete act. Similarly, Speer does not allege that he received lower payments of LTD benefits than others because of his age, but rather that the decisions to terminate his LTD benefits were because of his age. This, too is a discrete discriminatory act. Id., slip op. at 7 & n.6. Accordingly, the court ruled that the plaintiff’s age discrimination claims were untimely. The same can be said for the case at bar. The Plaintiffs do not allege that they are being paid differently because of their race. Rather, the Plaintiffs complain that the ordinance passed by the City Council prevents them from receiving the same seniority rights for the calculation of benefits and pay as Schulter. This is an alleged discrete discriminatory act. Further, the Plaintiffs
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do not allege they received less seniority or benefits than Schulter because of their race, but rather because of the ordinance passed by the City Council. This is an alleged discrete discriminatory act as well. However, discrete discriminatory acts are immediately actionable unlawful employment practices which are not subject to the continuing violation theory. Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). Discrete discriminatory acts generally relate to an individual’s “compensation, terms, conditions, or privileges of employment.” See Id. at 111-114. The passage of the ordinance that triggered the alleged discrete discriminatory act does not constitute a discriminatory compensation action and the Fair Pay Act does not apply in this case.
E. THE RIGHT TO SUE LETTER DID NOT PREVENT THE PLAINTIFFS FROM BRINGING THEIR CLAIMS IN STATE COURT
The Plaintiffs argue that the District Court was mistaken in dismissing their claims for damages prior to the state court judgment under the res judicata doctrine because they could not have asserted their Title VII claims in the state court proceedings since they had not received their right-to-sue letter. “The Seventh Circuit has addressed this precise issue and held that a plaintiff cannot rely upon the fact that he has not yet received a right-to-sue letter from the EEOC to escape the effects of res judicata.” See Huon v. Johnson & Bell, Ltd., 2010 WL 3404967, (N.D.Ill. 2010) citing Brzostowski v. Laidlaw Waste Sys., Inc., 49 F.3d 337, 339 (7th Cir. 1995)(plaintiff awaiting right-to-sue letter from EEOC “could have delayed the filing of his first suit or requested that the
17

Case: 07-2932 Document: 21 Filed: 10/20/2010 Pages: 26
court postpone or stay the first case. What he cannot do, as he did here, is split causes of actions and use different theories of recovery as separate bases for multiple lawsuits.”). Thus, the Plaintiffs cannot argue that they could not have brought their Title VII claims in state court because they had not received their right-to-sue letter.
As the court in Brzotowski pointed out, the Plaintiffs could have delayed the filing in state court or they could have stayed the proceedings in state court in order to obtain the right-to-sue letter. Additionally, the state court provided the Plaintiffs an adequate forum in which they could have brought their Title VII, Section 1983 and equal protection claims, though they choose not to do so.
CONCLUSION Based on the foregoing, Defendant City of Springfield, Illinois, respectfully submits that the District Court correctly ruled that there is no genuine issue of material fact and, as a matter of law, the Defendant is entitled to judgment in its favor. Therefore, the Defendant respectfully requests that this Court affirm the decision of the District Court.
Respectfully Submitted, City of Springfield, Illinois, Defendant-Appellee By: _______________________________ Frank Martinez Assistant Corporation Counsel Attorney for Defendant-Appellee
City of Springfield Office of Corporation Counsel Room 313, Municipal Center East 800 E. Monroe Street
18

Case: 07-2932 Document: 21 Filed: 10/20/2010 Pages: 26

Springfield, Illinois 62701-1689

Telephone: (217) 789-2393

Fax:

(217) 789-2397

19

Case: 07-2932 Document: 21 Filed: 10/20/2010 Pages: 26 Certificate of Compliance with F.R.A.P. Rule 32(a)(7) 1. This Brief complies with the requirements of Fed. R. App. P. 37(a)(7)(A) because it does not exceed 30 pages. 2. This Brief also complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because: This Brief contains 5,842 words, including the parts of the Brief otherwise exempt by Fed. R. App. P. 32(a)(7)(B)(iii). 3. This Brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) as modified by Circuit Rule 32(b) and the type style requirements of Fed. R. App. P. 32(a)(6) because: This Brief has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in 12 point Bookman Old Style. Dated: October 19, 2010
City of Springfield, Illinois, Defendant-Appellee _________________________________ Attorney for Defendant-Appellee
20

Case: 07-2932 Document: 21 Filed: 10/20/2010 Pages: 26 Circuit Rule 31(e) Certification
The full contents of the Appellees’ Brief has been furnished to the Court in PDF format by uploading to the Court’s website and a copy has been provided to counsel for Appellant via electronic mail. Dated: October 19, 2010
City of Springfield, Illinois, Defendant-Appellee _____________________________ Attorney for Defendant-Appellee
21

Case: 07-2932 Document: 21 Filed: 10/20/2010 Pages: 26
Proof of Service The undersigned counsel for the Defendant-Appellee, City of Springfield, Illinois, certifies on October 19, 2010, two copies of the Brief of Appellee was served by placing said copies in a properly addressed envelope, postage fully prepaid, in U.S. Mail to:
James P. Baker Baker, Baker & Krajewski, LLC 415 South Seventh Street Springfield, Illinois 62701 And 15 copies of the Brief were placed with the United States Post Office for delivery to: Clerk of Court United States Court of Appeals 219 South Dearborn Street Chicago, Illinois 60604 Dated: October 13, 2010
City of Springfield, Illinois, Defendant-Appellee ________________________________ Attorney for Defendant-Appellee
22

 
 Case: 07-2932 Document: 26 Filed: 11/10/2010 Pages: 16 CASE NO. 07-2932

IN THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

KEVIN GROESCH, GREG SHAFFER and )

SCOTT ALLIN,

)

)

Plaintiffs-Appellants, )

)

v.

)

)

THE CITY OF SPRINGFIELD, ILLINOIS, )

a municipal corporation,

)

)

Defendant-Appellee. )

On Appeal from the United States District Court for the Central District of Illinois, Springfield Division
Case No. 04 cv 3162 Hon. Jeanne E. Scott, Presiding

REPLY BRIEF OF THE PLAINTIFFS-APPELLANTS, KEVIN GROESCH, GREG SHAFFER and SCOTT ALLIN

JAMES P. BAKER Baker, Baker & Krajewski, LLC 415 South Seventh Street Springfield, Illinois 62701 Telephone: (217) 522-3445 Telefax: (217) 522-8234

Case: 07-2932 Document: 26 Filed: 11/10/2010 Pages: 16
TABLE OF CONTENTS Table of Contents ................................................................................................ i Table of Authorities ........................................................................................... ii I. THE “LEDBETTER ACT” DOES APPLY TO THE OFFICERS’ CLAIMS AGAINST THE CITY JURISDICTIONAL STATEMENT .............................. 1 II. THE OFFICERS’ CLAIMS ARE NOT BARRED BY RES JUDICATA ISSUES PRESENTED FOR REVIEW ............................................................ 8 III. CONCLUSION ................................................................................................ 10
Certificate of Compliance with F.R.A.P. Rule 32(a)(7) .................................. 11 Circuit Rule 31(e) Certification ....................................................................... 12 Certificate Of Service ...................................................................................... 13

Case: 07-2932 Document: 26 Filed: 11/10/2010 Pages: 16
TABLE OF AUTHORITIES
CASES AT & T Corporation v. Hulteen, 129 S.Ct. 1962, 173 L.Ed.2d 898 (2009) ................ 3 Abramson v. University of Hawaii, 594 F.2d 202 (9th Cir. 1979) ........................... 3,5 Bazemore v. Friday, 478 U.S. 385, 92 L.Ed.2d 315 (1986) ................................. 6,9,10 Brown v. Felsen, 442 U.S. 127, 131, 60 L.Ed.2d 767 (1979) ...................................... 8 Car Carriers, Inc. v. Ford Motor Company, 789 F.2d 589 (7th Cir.1986) .................. 8 Delaware State College v. Rick, 449 U.S. 250, 66 L.Ed.431 (1980) ........................... 3 Doe v. Allied-Signal, Inc., 985 F.2d 908 (7th Cir.1993) ............................................... 8 Herrman v. Cencom Cable Associates, Inc., 999 F.2d 223, 226 (7th Cir.1993) .......... 9 Hildebrandt v. Illinois Department of Natural Resources, 347 F.3d 1014
(7th Cir.2003) .......................................................................................................... 4,6 Ledbetter v. Goodyear Tire and Rubber Company, Inc., 421 F.3d 1169
(11th Cir.2005) ........................................................................................................... 3 Mikula v. Allegheny County of Pennsylvania, 583 F.3d 181, 186 (3rd Cir.2009) ..................................................................................................... 2,4,5,6,7 National Rail Passenger Corp. v. Morgan, 536 U.S. 101, 153 L.Ed.2d 106 (2002) .................................................................................................................... 6,9,10 Perkins v. Board of Trustees of the University of Illinois, 116 F.3d 235 (7th Cir.1997) ................................................................................................................. 9 Reese v. Ice Cream Specialties, Inc., 347 F.3d 1007 (7th Cir.2003) ...................... 4,5,6 Speer v. Montaineer Gas Company, 2009 WL 2255512 (N.D. W.Va.) ...................... 6 Sunrise Orchards, Inc. v. Pet Calvert Company, 2010 WL 1194203 (N.D. Ill.) N.6 ................. 9 United Air Lines, Inc. v. Evans, 431 U.S. 553, 52 L.Ed.2d 571 (1977) ................... 5,6 Statutes 42 U.S.C. § 2000e-5(e)(3)(A) ......................................................................................... 2 42 U.S.C. § 2000e-5 .............................................................................. 1,2,4, 5,6,8,9,10 42 U.S.C. § 2000e et.al. ................................................................................................ 1 42 U.S.C. § 20003(k) ..................................................................................................... 3

Case: 07-2932 Document: 26 Filed: 11/10/2010 Pages: 16

NO. 07-2932 IN THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

KEVIN GROESCH, GREG SHAFFER )

and SCOTT ALLIN,

)

)

Plaintiffs-Appellants, )

)

v.

)

)

THE CITY OF SPRINGFIELD,

)

ILLINOIS, a municipal corporation, )

)

Defendant-Appellee. )

On Appeal from a judgment of the United States District Court for the Central District of Illinois, Springfield Division Case No. 04 CV 3162 Hon. Jeanne E. Scott, Presiding

REPLY BRIEF OF KEVIN GROESCH, GREG SHAFFER AND SCOTT ALLIN

I. THE “LEDBETTER ACT” DOES APPLY TO THE OFFICERS’ CLAIMS AGAINST THE CITY1

As its primary argument in this appeal, the City contends that the Officers’

reliance upon the Ledbetter Act is misplaced. As its reasoning goes, the

discriminatory event giving rise to the Officers’ claim was the action of its City

Council in passing the Schluter Ordinance on March 29, 2000. Because it was

adopted more than two years prior to a charge of discrimination being filed by the

Officers (the Ledbetter Act permits the recovery of backpay going back as much as

two years before a charge of discrimination is filed), their claims are time barred

1 As used in this document: a) the “Officers” refers to Kevin Groesch, Greg Shaffer and Scott Allin; b) the “City” refers to the City of Springfield, Illinois; c) the “Ledbetter Act” refers to the “Lilly Ledbetter Fair Pay Act of 2009" [42 U.S.C. § 2000e-5]; d) the “Act” refers to Title VII of the “Civil Rights Act of 1964" [42 U.S.C. § 2000e et.al.]; and e) the “Schluter Ordinance” refers to the ordinance adopted by the City granting certain benefits to Don Schluter, an African-American patrol officer.
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Case: 07-2932 Document: 26 Filed: 11/10/2010 Pages: 16
[p.8 of the City’s brief]. For multiple reasons, this argument is a non-starter. First, it ignores what the Ledbetter Act provides. Even if the action of the
City Council is considered the discriminatory event which initially gave rise to the Officers’ claims, the Ledbetter Act provides that an employment practice forbidden by the Act occurs in three separate situations. At most, the City’s argument applies to only one. Under that law, a separate unlawful practice occurs each time a plaintiff receives wages or other compensation resulting in whole or part from a discriminatory decision [42 U.S.C. § 2000e-5(e)(3)(A)]. Thus, the Officers may recover backpay lost as a result of a discriminatory decision for losses occurring during the two year time period preceding the date their charge of discrimination was filed regardless of when the discriminatory decision was made.
Second, the City incorrectly identifies when the discriminatory decision occurred. While the Schluter Ordinance was passed in March of 2000, the discriminatory event did not then occur. After the Illinois Appellate Court reversed the decision of the Sangamon County Circuit Court invalidating the Schluter Ordinance, the Officers, on December 11, 2002, made a written request of the City that they receive the same benefits as those given Schluter [SA11; R22, Harris Dep.66-68,72]. It was after that request was ignored that the Officers pressed their claim. The failure of the City to respond to the Officers’ request qualifies as a compensation decision within the meaning of the Ledbetter Act [Mikula v. Allegheny County of Pennsylvania, 583 F.3d 181, 186 (3rd Cir.2009)].
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Case: 07-2932 Document: 26 Filed: 11/10/2010 Pages: 16
Third, AT & T Corporation v. Hulteen, 129 S.Ct. 1962, 173 L.Ed.2d 898 (2009), does not help the City. The question in that case involved whether an employer violated the “Pregnancy Discrimination Act” [42 U.S.C. § 20003(k)] when it paid pension benefits calculated under a then lawful accrual rule which predated the enactment of that law. The plaintiff’s claim in that case hinged upon a rule adopted by the employer prior to the enactment of the foregoing law which, according to the Court, was lawful at that time. Because the plaintiff, in receiving pension benefits, was not impacted by conduct which violated the Act, the Court held that she could not avail herself of the right afforded under the Ledbetter Act. Unlike Hulteen, the District Court, in denying the City’s motion for summary judgment prior to Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 167 L.Ed.2d 982 (2009), concluded that a genuine issue of fact exists concerning whether the difference in treatment between Schluter and the Officers violated the Act [SA54-67]. Thus, unlike the situation in Hulteen, no conclusion can be drawn that the conduct of the City challenged in this case was permissible as a matter of law.
Fourth, the City, in relying upon Delaware State College v. Rick, 449 U.S. 250, 66 L.Ed.2d 431 (1980) and Abramson v. University of Hawaii, 594 F.2d 202 (9th Cir. 1979) to bolster its argument, is at best mixing legal apples and oranges. Neither case has relevance to the case at bar. Furthermore, applying those cases to the present situation cannot be reconciled with the express provisions of the Ledbetter Act. The Rick Court held that a college professor’s cause of action for
Page 3 of 13

Case: 07-2932 Document: 26 Filed: 11/10/2010 Pages: 16
purposes of triggering the applicable statute of limitations occurred when he was first informed that his application for tenure had been denied even though the effects of the denial (the professor’s termination from employment) occurred much later [p.258]. In reaching this result the Court favorably referred to the holding in Abramson, another tenure denial case. Both cases recognized that the “proper focus is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts become most painful.” This Court, prior to Ledbetter, did not apply that principle to discriminatory compensation practice cases. Instead, it applied the paycheck accrual theory in which each payment arising out of a discriminatory compensation practice represented a new cause of action [Hildebrandt v. Illinois Department of Natural Resources, 347 F.3d 1014 (7th Cir. 2003); and Reese v. Ice Cream Specialties, Inc., 347 F.3d 1007 (7th Cir.2003)]. This principle was embodied in the Ledbetter Act which recognizes that a separate unlawful employment practice occurs “each time wages, benefits, or other compensation is paid, resulting in whole or in part from such decision or other practice” [42 U.S.C. § 2000e-5(e)(3)(A)].2
Fifth, the City argues that this case is dissimilar to what occurred in Ledbetter because the Officers (unlike what happened in Ledbetter) were not subject to discriminatory performance evaluations and “the Plaintiffs were not denied raises or benefits based upon their gender nor was there a discriminatory
2 The purpose of the Ledbetter Act was to reinstate the law regarding the timeliness of pay compensation claims to what it had been prior to the Ledbetter decision [see Mikula at p.184].
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Case: 07-2932 Document: 26 Filed: 11/10/2010 Pages: 16
motive behind the pay and benefits that the Plaintiffs received compared to Schluter” [pp.11-12 of the City’s brief]. The fact that this is a race rather than gender discrimination case and did not arise from discriminatory performance evaluations is, for purposes of this appeal, a distinction without difference. The holding in Ledbetter was applied by the District Court to bar the Officers’ claims. The Ledbetter Act was enacted to undo the effects of that decision. The failure of an employer to respond to an employee’s request for parity in compensation (the situation at hand) qualifies as a compensation decision for purposes of the Ledbetter Act [Mikula at p.186].
The City’s argument that the benefits extended to Schluter through the enactment of the Schluter Ordinance but later denied to the Officers was not based upon a discriminatory motive is, to say the least, disputed. In a detailed decision initially denying the City’s request for summary judgment, the District Court noted that a genuine issue of material facts exist as to whether the City’s conduct was motivated by race [SA54-67]. The City in this appeal raises no issue challenging that determination [p.1 of the City’s brief].
Sixth, the City’s reliance upon United Air Lines, Inc. v. Evans, 431 U.S. 553, 52 L.Ed.2d 571 (1977), is mistaken. The City contends that in view of Evans, the Officers’ reliance upon this Court’s holding in Hildebrandt and Reese “is unfounded” [pp.14-16 of the City’s brief].
In Evans the Supreme Court reasoned that the Act does not foreclose an attack on the current operation of a seniority system which is discriminatory. But a
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Case: 07-2932 Document: 26 Filed: 11/10/2010 Pages: 16
challenge to a neutral system may not be based merely on the fact that a past event which has no present legal significance effected calculations made pursuant to that neutral system [p.560].
The City reasons that the Officers do not claim that the City’s “pay and benefit scheme” which ties compensation to the length of a police officer’s service is itself discriminatory and thus Evans applies to this situation. According to the City, the arguments the Officers advance in this appeal “was rejected in Evans” [p.16 of the City’s brief].
The City’s reliance upon Evans would rest on better legs if the law in this area had been silent in the thirty-three years since Evans was decided. Unfortunately, for the City, this has not been the case.
In reaching its decisions in Hildebrandt and Reese, this Court relied upon the Supreme Court’s view concerning the timeliness of claims in pay discrimination cases as stated in both Bazemore v. Friday, 478 U.S. 385, 92 L.Ed.2d 315 (1986) and National Rail Passenger Corp. v. Morgan, 536 U.S. 101, 153 L.Ed.2d 106 (2002). Each of those cases which was decided well after Evans, the Court held that each paycheck received as the result of a discriminatory compensation practice represented a separate and discrete act of discrimination which start a new clock running for statute of limitations purposes. The Hildebrandt Court noted that:
“The existence of past acts and the employee’s prior knowledge of their occurrences, however, does not bar employees from filing charges about related discrete acts so long as the acts are independently discriminatory and charges addressing those acts are themselves timely filed. Nor does the statute bar an employee from using the prior acts as background evidence in support of a timely
Page 6 of 13

Case: 07-2932 Document: 26 Filed: 11/10/2010 Pages: 16
claim” [Hildebrandt at p.1027 quoting from Morgan at p.113]. The Ledbetter Act, in setting aside the effects of the Ledbetter decision,
codifies this rule. Finally, contrary to its argument, Speer v. Montaineer Gas Company, 2009
WL 2255512 (N.D. W.Va.) does not help the City in this appeal. The plaintiff in that case alleged that his employer discriminated against him on account of his age when it: a) terminated his long term disability benefits; and b) refused to return him to work. Because he failed to file a charge of discrimination within 300 days of either event, the Court held that his claim was time barred. It refused to apply the Ledbetter Act to save his claims reasoning that by its terms the Ledbetter Act applies to discrimination in compensation. According to it, the plaintiff’s claims were not directed toward a discriminatory compensation practice.
Unlike the Speers situation, the Officers claim that, if treated like Schluter, their compensation would be greater because they would receive service credit for the years worked for the City during their first period of employment with it, is directed toward a discriminatory compensation practice.
A situation more reminiscent to the present case was presented in Mikula. In that case, the plaintiff, a female, claimed gender discrimination on the part of her employer in paying her less than a male employee whose performed substantially similar work. The Court reasoned that the Ledbetter Act applied because her employer’s failure to respond to her request for a raise qualified as a “compensation decision” within the meaning of that law and, accordingly, the
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Case: 07-2932 Document: 26 Filed: 11/10/2010 Pages: 16
Ledbetter Act applied to her case. In this case the Officers (like the Mikula plaintiff) made a written request to the City that they, like Schluter, be credited with their prior years of service for purposes of determining their wage rates and benefits [SA11]. That request, like the situation in Mikula, was ignored by the City [R22, Harris Dep.66-68,72].
II. THE OFFICERS’ CLAIMS ARE NOT BARRED BY RES JUDICATA Relying upon the same transaction test developed by this Court [see Car Carriers, Inc. v. Ford Motor Company, 789 F.2d 589 (7th Cir.1986) and Doe v. AlliedSignal, Inc., 985 F.2d 908 (7th Cir.1993), the City claims that the state court judgment bars the Officers’ claims in this case because both arose from a single core of operative facts giving rise to a remedy. Case law and the Ledbetter Act suggests otherwise. Res judicata is designed to ensure the finality of judicial decisions. Under that doctrine, “a final judgment on the merits bars further claims by parties or their privies based upon the same cause of action” [Brown v. Felsen, 442 U.S. 127, 131, 60 L.Ed.2d 767 (1979)]. For federal res judicata to apply, there must be: 1) a financial judgment on the merits in an earlier case; 2) an identity of the cause of action in both the earlier and later cases; and 3) an identity of the parties or their privies in the two case [Doe at 913]. The same transaction test was developed to prevent a plaintiff from bypassing res judicata by altering the theory of his case if it arises out of the same fact pattern as the earlier case. “Once a transaction has caused injury, all claims
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Case: 07-2932 Document: 26 Filed: 11/10/2010 Pages: 16
arising from that transaction must be brought in one suit or lost” [Car Carriers at 593]. Res judicata requires the joinder of all legal challenges to a wrong. However, it does not require the joinder of separate wrongs [Herrman v. Cencom Cable Associates, Inc., 999 F.2d 223, 226 (7th Cir.1993); and Perkins v. Board of Trustees of the University of Illinois, 116 F.3d 235 (7th Cir.1997)].
In this case the Officers have suffered separate wrongs. The wrongs prior to the entry of the state court judgment and those occurring thereafter are not the same cause of action.
This Court in Hildebrandt and Reese recognized that each time a plaintiff received a discriminatory paycheck a separate discriminatory act occurred giving rise to a separate actionable claim. Thus, compensation received by the Officers at various times prior to the state court judgment represented different causes of action from those received by them after the state court judgment.3
The Supreme Court in Bazemore recognized that “each week’s paycheck that delivers less to a black than to a similarly situated white is a wrong actionable under Title VII” [pp.395-396]. In Morgan, the Court, relying upon Bazemore, cited a paycheck paid at a discriminatory rate as an example of an actionable “discrete act or single occurrence, even when it has a connection to other acts” [p.111].
The Ledbetter Act codifies this view. By its terms, a separate “unlawful
3 The same transaction doctrine cannot be used to bar a debt or liability which accrues after the initial judgment [Sunrise Orchards, Inc. v. Pet Calvert Company, 2010 WL 1194203 (N.D. Ill.) N.6].
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Case: 07-2932 Document: 26 Filed: 11/10/2010 Pages: 16

employment practice” occurs “each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or practice” [42 U.S.C. § 2000e-5(e)(3)(A)].
Because each paycheck received by the Officers after the state court judgment represents under Bazemore, Morgan and the Ledbetter Act a separate cause of action, unlike the situations covered by the same transaction test, the District Court correctly concluded that res judicata does not bar those causes of actions.
III. CONCLUSION For the reasons more fully stated above, the Plaintiffs-Appellants, Kevin Groesch, Greg Shaffer, and Scott Allin, respectfully request that this Court reverse the decision of the District Court granting the City's request for summary judgment and remand this case to it for purposes of trial.
KEVIN GROESCH, GREG SHAFFER AND SCOTT ALLIN

James P. Baker Bar #: 0097802 Baker, Baker & Krajewski, LLC 415 South Seventh Street Springfield, Illinois 62701 Phone: (217) 522-3445 Fax: (217) 522-8234 email: bschrader2@gmail.com

By:_____________________________ One of their Attorneys

Page 10 of 13

Case: 07-2932 Document: 26 Filed: 11/10/2010 Pages: 16

NO. 07-2932 IN THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

KEVIN GROESCH, GREG SHAFFER )

and SCOTT ALLIN,

)

)

Plaintiffs-Appellants, )

)

v.

)

)

THE CITY OF SPRINGFIELD,

)

ILLINOIS, a municipal corporation, )

)

Defendant-Appellee. )

On Appeal from a judgment of the United States District Court for the Central District of Illinois, Springfield Division Case No. 04 CV 3162 Hon. Jeanne E. Scott, Presiding

CERTIFICATE OF COMPLIANCE

COME NOW the Appellants, Kevin Groesch, Greg Shaffer and Scott Allin, and in compliance with Circuit Rule 32(d)(2) states that the reply brief of the Appellants complies with the type volume limitation. The reply brief contains 2590 words according to the count of the word processing program WordPerfect used by counsel for the Appellants.

Kevin Groesch, Greg Shaffer and Scott Allin

November 9, 2010
James P. Baker Baker, Baker & Krajewski, LLC 415 South Seventh Street Springfield, Illinois 62701 (217) 522-3445

BY:_________________________________ JAMES P. BAKER

Page 11 of 13

Case: 07-2932 Document: 26 Filed: 11/10/2010 Pages: 16

NO. 07-2932 IN THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

KEVIN GROESCH, GREG SHAFFER )

and SCOTT ALLIN,

)

)

Plaintiffs-Appellants, )

)

v.

)

)

THE CITY OF SPRINGFIELD,

)

ILLINOIS, a municipal corporation, )

)

Defendant-Appellee. )

On Appeal from a judgment of the United States District Court for the Central District of Illinois, Springfield Division Case No. 04 CV 3162 Hon. Jeanne E. Scott, Presiding

CIRCUIT RULE 31(e) CERTIFICATION

The undersigned hereby certifies that I have filed electronically pursuant to Circuit Rule 31(e), all of the appendix items that are available in non-scanned PDF format.

Kevin Groesch, Greg Shaffer and Scott Allin

November 9, 2010
James P. Baker Baker, Baker & Krajewski, LLC 415 South Seventh Street Springfield, Illinois 62701 (217) 522-3445

BY:___________________________________ JAMES P. BAKER

Page 12 of 13

Case: 07-2932 Document: 26 Filed: 11/10/2010 Pages: 16

NO. 07-2932 IN THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

KEVIN GROESCH, GREG SHAFFER )

and SCOTT ALLIN,

)

)

Plaintiffs-Appellants, )

)

v.

)

)

THE CITY OF SPRINGFIELD,

)

ILLINOIS, a municipal corporation, )

)

Defendant-Appellee. )

On Appeal from a judgment of the United States District Court for the Central District of Illinois, Springfield Division Case No. 04 CV 3162 Hon. Jeanne E. Scott, Presiding

CERTIFICATE OF SERVICE

The Plaintiffs-Appellants, Kevin Groesch, Greg Shaffer and Scott Allin, hereby certify that on November 9, 2010, three copies of the Reply Brief of Appellants as well as a digital version containing the brief, were delivered by United States Mail from the office of the undersigned to counsel for the DefendantAppellee, at the following address:

Jennifer Johnson Frank Martinez Office of the Corporation Counsel Municipal Building East, #313 800 East Monroe Street Springfield, Illinois 62701

Kevin Groesch, Greg Shaffer and Scott Allin

James P. Baker Baker, Baker & Krajewski, LLC 415 South Seventh Street Springfield, Illinois 62701 (217) 522-3445

By:_________________________________ Their Attorney

Page 13 of 13

 
 3:04-cv-03162-MPM-BGC # 32 Page 1 of 14

E-FILED

Wednesday, 11 July, 2007 03:37:22 PM

Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF ILLINOIS

SPRINGFIELD DIVISION

KEVIN GROESCH, GREG

)

SHAFFER and SCOTT ALLIN, )

)

Plaintiffs,

)

)

v.

)

)

CITY OF SPRINGFIELD,

)

ILLINOIS, a municipal

)

corporation,

)

)

Defendant.

)

No. 04-3162

OPINION

JEANNE E. SCOTT, U.S. District Judge:

This matter comes before the Court on Defendant City of

Springfield, Illinois’ (City) Motion for Summary Judgment (d/e 19). On

December 29, 2006, the City’s summary judgment motion was granted in

part and denied in part. See Opinion entered December 29, 2006 (d/e 26).

By agreement of the parties, the matter was stayed pending the United

States Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber

Co., Inc., 127 S.Ct. 2162 (2007). The Supreme Court issued its decision

on May 29, 2007. On May 31, 2007, this Court directed the parties to

1

3:04-cv-03162-MPM-BGC # 32 Page 2 of 14
submit supplemental memoranda addressing the impact of Ledbetter on the present case. Text Order entered May 31, 2007. The parties have done so. Accordingly, the Court must now reconsider its December 29, 2006, Opinion on the summary judgment motion in light of Ledbetter. As set forth below, the City’s Motion for Summary Judgment is now ALLOWED as to all claims. The Court vacates the portion of the December 29, 2006, Opinion that denied summary judgment.
BACKGROUND Plaintiffs Kevin Groesch, Greg Shaffer, and Scott Allin filed the instant lawsuit claiming that the City discriminated against them on account of race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Counts I, III, and V). Plaintiffs also brought this suit under 28 U.S.C. § 1983 asserting that the City discriminated against them on the basis of race by treating them less favorably than a similarly situated African-American colleague in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution (Counts II, IV, and VI). The facts of this case are more fully set forth in the December 29, 2006, Opinion. As such, the Court will only briefly restate the facts as they
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apply here. The Plaintiffs in this case all had similar employment patterns. Plaintiff Groesch began his employment with the City’s Police Department in June of 1981, but left in good standing in December 1988. On September 10, 1996, however, he returned to the City’s employ as a patrol officer. Plaintiff Shaffer began his employment with the City’s Police Department in January 1980 as a patrol officer, but left in good standing in July 1987. He, however, returned to the City’s employ on July 6, 1993. Plaintiff Allin began his employment with the City’s Police Department on January 7, 1980, but left in good standing on November 22, 1986. He later returned to the City’s employ on January 9, 1989. When the Plaintiffs returned to the City’s employ, they were not given credit for their prior years of service when their salary and benefits were calculated.
The Plaintiffs contended that the City treated their African-American colleague, Donald A. Schluter, more favorably than they were treated. Schluter started his employment with the City’s Police Department on April 4, 1994, but left on November 12, 1999, while in good standing. On January 31, 2000, Schluter sent a letter to then Chief of Police John Harris, expressing his interest in returning to the City’s employ. Chief Harris actively assisted Schluter in that effort. On March 28, 2000, the City
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passed Ordinance 198.3.00 (the Schluter Ordinance) which enabled Schluter to return as a City patrol officer with his previous level of seniority. The Schluter Ordinance was solely applicable to Schluter and no one else.
On December 11, 2002, the Plaintiffs sent a letter to Chief Harris, requesting that they, too, be afforded the same treatment by having their prior years of service restored. Neither Chief Harris nor the City Council took any action with respect to the Plaintiffs’ request. This Court stated in the December 29, 2006, Opinion that the adverse employment action in this case occurred in December of 2002, when the Plaintiffs renewed their requests for restoration of service and the City Council failed to act upon their request.1
On April 3, 2003, the Plaintiffs filed a complaint against the City in the Illinois Circuit Court for the Seventh Judicial District, alleging a violation of the equal protection clause of Article I, Section 2 of the Illinois Constitution of 1970. Unlike the Complaint filed with this Court, Plaintiffs did not allege in the state court complaint that they had suffered reverse
1The Court notes that the City erroneously asserts in its Supplemental Memorandum that the adverse employment action occurred on March 29, 2000, when the City passed the Schluter Ordinance. Defendant’s Supplemental Memorandum (d/e 30), at 3.
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racial discrimination. On November 10, 2003, the Circuit Court issued an order dismissing Plaintiffs’ complaint as being time-barred. On July 22, 2004, the Illinois Appellate Court for the Fourth District affirmed the Circuit Court’s decision. On July 27, 2004, Plaintiffs filed the instant lawsuit.
ANALYSIS The City previously moved to dismiss the Plaintiffs’ Complaint, asserting, among other things, that the action was barred by the doctrines of res judicata and collateral estoppel due to Plaintiffs’ unsuccessful state court action. In addressing whether the Plaintiffs’ claims were so barred, this Court looked to Illinois law and determined that the requirements of res judicata had been satisfied. See Opinion entered February 1, 2005 (d/e 11), at 8-16. This Court, however, noted that Plaintiffs’ claim that the City’s violations of both Title VII and § 1983 arose anew with every paycheck they received made a principal difference in the Court’s res judicata analysis. The Plaintiffs argued that every paycheck they received from the City constituted a separate, discriminatory action. This Court noted that the Seventh Circuit case law at that time supported the Plaintiffs’ contention that every paycheck the City paid each Plaintiff was
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a separate, discrete, potentially discriminatory act. Id. at 14. Accordingly, this Court stated in the December 29, 2006, Opinion that the City was entitled to summary judgment on Plaintiffs’ claims for damages arising prior to April 3, 2003, and on Plaintiffs’ claims arising before the date of the state trial court judgment on November 10, 2003, on the basis of res judicata.2 This Court, however, noted that the Plaintiffs’ remaining claims (namely, claims arising from allegedly discriminatory wages paid after November 10, 2003) were actionable, provided that they satisfied the relevant statute of limitations.
The Supreme Court in Ledbetter rejected the “paycheck accrual rule” relied upon by the Plaintiffs in this case, under which they argued that every paycheck they received constituted less favorable treatment than that afforded to Schluter. In rejecting the paycheck accrual rule, the Ledbetter Court stated that the continuing effects of past discriminatory actions cannot resuscitate claims that are time-barred.3 In other words, paychecks
2The Court also wrote in the December 29, 2006, Opinion that the City was entitled to summary judgment as to Plaintiff Shaffer’s claims for monetary damages accruing prior to January 19, 2005, based on the fact that, after Shaffer had filed for bankruptcy on January 19, 2005, the City purchased Shaffer’s then existing claim from the Trustee in bankruptcy.
3In Ledbetter, the plaintiff complained that her employer discriminated against her in the payment of wages by paying her less than her male counterparts throughout
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that are a mere reflection of past discriminatory actions are not sufficient to
constitute a new violation under Title VII. The Supreme Court reasoned:
“The EEOC charging period is triggered when a discrete unlawful practice
takes place. A new violation does not occur, and a new charging period does
not commence, upon the occurrence of subsequent nondiscriminatory acts
that entail adverse effects resulting from the past discrimination.” Ledbetter,
127 S.Ct. at 2169. Based on Ledbetter, all of Plaintiffs’ claims (under Title
VII and 42 U.S.C. § 1983) are therefore barred by res judicata. The
Plaintiffs could have brought their federal claims of reverse racial
discrimination claims as part of their April 3, 2003, state court action, but
they failed to do so.4
her employment. She alleged that the pay disparity was a result of her supervisors’ poor performance evaluations of her in the past and that such past performance evaluations had a detrimental affect on the amount of her pay throughout her employment. Rather than filing a charge of discrimination with the EEOC when the discriminatory actions arose, the plaintiff sat on her claims and did not file a charge with the EEOC until her retirement. The Supreme Court stated that the plaintiff could not prevail on her Title VII pay discrimination claims because she had failed to assert that the “decisionmakers acted with actual discriminatory intent either when they issued her checks during the EEOC charging period or when they denied her a raise in 1998.” Ledbetter, 127 S.Ct. at 2167. In other words, the plaintiff had failed to promptly file her charge of discrimination with the EEOC at the time the discriminatory pay decisions giving rise to her claims arose.
4The Court notes that state courts have concurrent jurisdiction over both 42 U.S.C. § 1983 and Title VII claims. See Felder v. Casey, 487 U.S. 131, 139 (1988); Yellow Freight System, Inc. v. Donnelly, 494 U.S. 820, 826 (1990).
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The Court also notes that even if Plaintiffs’ Title VII claims were not barred by the doctrine of res judicata, the claims are untimely. According to Ledbetter, employees alleging pay discrimination under Title VII must file a charge with the relevant agency within either 180 or 300 days (depending on the state) of the alleged discriminatory action in order for their claims to be viable under Title VII.5 As mentioned supra, this Court found in the December 29, 2006, Opinion that the adverse employment action in this case occurred in December of 2002. Plaintiffs filed their charge with the EEOC on March 2, 2004. Under Ledbetter, Plaintiffs can only recover for discriminatory actions that occurred between May 7, 2003, and March 2, 2004. The December 2002 adverse employment action, however, occurred outside the limitations period. The Plaintiffs have thus failed to allege any discrete, discriminatory actions that occurred within the 300-day charging period. Plaintiffs’ Title VII claims are therefore untimely.
The Plaintiffs assert that their equal protection claims under § 1983 are timely because they were brought within the applicable limitations period, which is two years. The Plaintiffs are correct that, unlike their Title
5The Court notes that in Illinois, the charging period is 300 days rather than 180 days. Hall v. Bodine Elec. Co., 276 F.3d 345, 352-53 (7th Cir. 2002); 42 U.S.C. § 2000e-5(e)(1).
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VII claims, their equal protection claims are timely. As noted supra, the adverse employment action in this case occurred in December of 2002, and the Plaintiffs filed this suit on July 27, 2004. Therefore, Plaintiffs’ § 1983 action was brought within the two-year statute of limitations period. However, as explained supra, the Plaintiffs’ equal protections claims under § 1983 are barred by res judicata. They could have been brought as part of the April 2003 state court action; res judicata applies to matters that could have been brought in an earlier suit if they arise from the same set of operative facts. After Ledbetter, it is clear that this lawsuit arises from the same set of operative facts as the April 2003 state court action. Thus, even though the § 1983 claims were filed within the applicable limitations period, they are barred by res judicata.
The Plaintiffs next assert that the situation presented here is analogous to the one involved in Bazemore v. Friday, which the Ledbetter Court noted “stands for the proposition that an employer violates Title VII and triggers a new EEOC charging period whenever the employer issues paychecks using a discriminatory pay structure. But a new Title VII violation does not occur and a new charging period is not triggered when an employer issues paychecks pursuant to a system that is facially
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nondiscriminatory and neutrally applied.” Ledbetter, 127 S.Ct. at 2174 (internal quotations omitted); Bazemore, 478 U.S. 385 (1986) (per curiam). Plaintiffs’ situation is not analogous to the one in Bazemore. As the Ledbetter Court explained, Bazemore involved a situation where the employer adopted discriminatory pay structures for service employees, one being “a white branch” and the other being a “Negro branch,” with the latter receiving less pay. Ledbetter, 127 S.Ct. at 2172. Here, there is no discriminatory pay structure like the one present in Bazemore. The enactment of the Schluter Ordinance was a single act that afforded favorable treatment to one single individual. The situation presented in this case more closely mirrors the one presented in Ledbetter. As such, Bazemore does not help the Plaintiffs.
The Plaintiffs lastly contend that even if Ledbetter is dispositive of the issues presented here, it should not be applied retroactively to bar the instant action. The Plaintiffs rely on Anton v. Lehpamer, which they contend stands for the proposition that a change in controlling law concerning the applicable statute of limitations in a § 1983 claim should be applied prospectively. See Anton, 787 F.2d 1141 (7th Cir. 1986). Plaintiffs’ reliance on Anton is misplaced. In Anton, the plaintiff filed suit under §
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1983, alleging that various police officers violated his constitutional rights by using excessive force when they arrested him. The plaintiff had filed the lawsuit two years and one month following the event giving rise to his § 1983 claim (namely, the arrest). At the time the plaintiff brought his § 1983 action, it was timely because “federal courts in Illinois applied a fiveyear statute of limitations in all section 1983 actions.” Id. at 1142. While the plaintiff’s case was pending in the federal district court, however, the Supreme Court issued its decision in Wilson v. Garcia, finding that the “statute of limitations for all section 1983 actions is the state’s personal injury statute of limitations[,]” which for Illinois is two years. Id.; see Wilson, 471 U.S. 261 (1985).
Relying on Wilson, the district judge granted the defendants’ summary judgment motion, concluding that the plaintiff’s § 1983 claims were untimely. On direct appeal, the Seventh Circuit, however, reversed concluding that Wilson should not be applied retroactively when a federal court in Illinois borrows the state’s statute of limitations in a § 1983 action. Anton, 787 F.2d at 1141. In making this determination, the Seventh Circuit applied the three-prong test articulated by the Supreme Court in Chevron Oil Co. v. Huson, 404 U.S. 97 (1971). Under Chevron Oil, to
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determine whether a decision in a civil case should be applied prospectively only, courts must conduct a three-part inquiry, one of which is whether “the decision to be applied nonretroactively . . . establish[es] a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed.” Id. at 106.
Here, unlike Wilson, the Supreme Court in Ledbetter neither established a new principle of law nor decided an issue of first impression whose resolution was not clearly foreshadowed. The Ledbetter Court simply clarified when a cause of action accrues for purposes of disparate treatment pay discrimination claims under Title VII, by examining the EEOC charging deadline Congress set forth in Title VII and by relying on relevant Supreme Court case law. Anton therefore is inapplicable here.
More importantly, the Supreme Court in Harper v. Virginia Dept. of Taxation held that: “When [the Supreme] Court applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate [its] announcement of the rule.” Harper, 509 U.S. 86, 97
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(1993). The Harper Court further explained:
When this Court does not reserve the question whether its holding should be applied to the parties before it, however, an opinion announcing a rule of federal law is properly understood to have followed the normal rule of retroactive application and must be read to hold . . . that its rule should apply retroactively to the litigants then before the Court. Furthermore, the legal imperative to apply a rule of federal law retroactively after the case announcing the rule has already done so must prevai[l] over any claim based on a Chevron Oil analysis.
Id. at 97-98 (internal quotations and citations omitted). The Seventh
Circuit in Anton similarly noted that the general rule is that judicial
decisions have retroactive effect. Anton, 787 F.2d at 1143. Here, the Court
sees no reason to depart from the general rule set forth in Harper. Based on
Harper, therefore, Ledbetter must be given full retroactive effect in this case.
THEREFORE, as set forth above, Defendant’s Motion for Summary
Judgment (d/e 19) is now ALLOWED as to all claims. The Court vacates
the portion of the December 29, 2006, Opinion (d/e 26) that denied
summary judgment and directs that judgment be entered in favor of
Defendant. The Court cancels the status conference set for July 16, 2007,
at 9:00 a.m. All pending motions are denied as moot. The case is closed.
IT IS THEREFORE SO ORDERED.
ENTER: July 11, 2007.
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FOR THE COURT:

s/ Jeanne E. Scott JEANNE E. SCOTT UNITED STATES DISTRICT JUDGE

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E-FILED

Friday, 29 December, 2006 02:12:11 PM

Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF ILLINOIS

SPRINGFIELD DIVISION

KEVIN GROESCH, GREG

)

SHAFFER and SCOTT ALLIN, )

)

Plaintiffs,

)

)

v.

)

)

CITY OF SPRINGFIELD,

)

ILLINOIS, a municipal

)

corporation,

)

)

Defendant.

)

No. 04-3162

OPINION

JEANNE E. SCOTT, U.S. District Judge:

This matter comes before the Court on Defendant City of

Springfield, Illinois’ (City) Motion for Summary Judgment (d/e 19). The

City moves for summary judgment on all claims set forth in the Complaint

(d/e 1). In Counts I, III, and V, Plaintiffs Kevin Groesch, Greg Shaffer, and

Scott Allin respectively allege discriminatory treatment in employment

based on their race, in violation of Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e et seq. In Counts II, IV, and VI, Plaintiffs Groesch,

Shaffer and Allin, respectively, claim a violation of 42 U.S.C. § 1983, based

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on allegations that they were treated less favorably than a similarly situated African-American colleague in violation of their right to equal protection

under the Fourteenth Amendment to the United States Constitution. The

City now moves for summary judgment. For the reasons set forth below, the City’s Motion for Summary Judgment is ALLOWED in part and

DENIED in part.

STATEMENT OF FACTS

Plaintiffs Kevin Groesch, Greg Shaffer, and Scott Allin are patrol

officers currently employed by the City’s Police Department. Plaintiffs are all Caucasian males. Groesch’s employment with the City began in June of

1981. Sometime in December 1988, Groesch made requests to take a sixmonth leave of absence and later a three-month leave of absence. Those

requests were denied; Groesch was granted a sixty-day leave of absence,

however. After the expiration of the leave, Groesch did not return to the City’s employ, but left the City’s employ in good standing, accepting a

position at the Illinois Department of Corrections as an investigator. Groesch states in his Affidavit that, shortly following his resignation from

the Police Department, he wished to return to the City’s employ. In that

effort, between 1989 and September of 1996, he submitted applications and

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tested to be placed on an eligibility list created by the Police Department to
hire new officers.1 Plaintiffs’ Appendix to the Memorandum in Opposition
to Defendant’s Motion for Summary Judgment (d/e 22), Attachment 1,
Affidavit of Kevin Groesch (Groesch Aff.), ¶ 7.
On September 10, 1996, approximately 8 years later, Groesch
returned to the City’s employ as a patrol officer. When Groesch was rehired
by the City, the City did not give him any credit for his previous years of
service for purposes of calculating his seniority, vacation and sick pay
1Generally, when there is a need to hire police officers and sufficient funds are budgeted for that purpose, the City creates an eligibility roster and places names of the candidates who have successfully completed necessary testing on the roster. The City hires new recruits from the eligibility roster. The Springfield Civil Service Commission, not the Springfield City Council, is normally involved in the hiring process of police officers; as such, it is responsible for resolving issues regarding whether a police officer could be hired or whether a candidate met the requirements for a position.
In order to become a police patrol officer, a candidate must first submit his or her application to the City’s Human Resources Department and then undergo a written examination, a physical agility test and an oral interview. At the completion of the testing process, the candidate is placed on an eligibility list created by the City and is ranked based on the test scores. When an eligibility roster is certified by the Civil Service Commission, it remains in place for three years. Plaintiffs’ Appendix to the Memorandum in Opposition to Defendant’s Motion for Summary Judgment, Attachment 6, Deposition of Gina Larkin (Larkin Dep.) 29. The City would send background questionnaires to top applicants on the eligibility list. Once the background questionnaire was returned, the Police Department conducted a background check of each candidate, with the results being sent to the Civil Service Commission. Candidates that survived background checks would then undergo a psychological examination. Candidates that successfully passed both the background check and the psychological examination would be extended a conditional offer of employment. Once a candidate is determined to be fit for duty based on a medical examination, an official offer of employment is extended. Following a successful completion of the requisite training, the candidates are then sworn in as police officers.
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benefits.2 Groesch was considered a new hire, with his seniority being determined as if he had newly joined the Police Department.
Shaffer and Allin also have similar employment patterns. Shaffer’s employment with the City began in January 1980 as a police patrol officer. In July 1987, Shaffer left the City’s employ in good standing to pursue other career opportunities. At the time he left, Shaffer requested a leave of absence, but his request was denied. On July 6, 1993, however, he returned to the City’s employ as a patrol officer. When Shaffer returned to the City’s employ, he was considered a new hire and was not given any credit for his prior years of service for purposes of calculating his seniority, vacation and sick pay benefits.
Allin’s employment with the City began on January 7, 1980 as a police patrol officer. On November 22, 1986, he left the City’s employ in good standing to form his own business. At the time he left, Allin requested a leave of absence, but was denied. Almost six months after he left the Police Department, Allin was interested in returning to the City’s employ.
2At all times relevant to this suit, the City determined patrol officers’ salary and benefits by their level of seniority. This means that the longer an individual is employed with the City “the higher his salary and the greater his vacation and sick pay benefits.” Groesch Aff., ¶ 10. “[S]hift assignments and the entitlement to work overtime are [also] awarded on the basis of seniority.” Id.
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In that effort, he submitted an application for employment, underwent the necessary testing, and was placed on a police patrol officer eligibility roster, as instructed by Karola Baringer, then Personnel Director of the City and also an official of the Springfield Civil Service Commission. On January 9, 1989, Allin was rehired from the eligibility roster as a police patrol officer.
Once Allin returned to the City’s employ, he became concerned about not receiving credit for his prior years of service. He expressed his concerns to Rick Walton, then Deputy Chief of Operation, who informed him that once his probationary period was completed he would be restored his earlier years of service. Allin filed a grievance with the Police Patrol Officer Union, Policemen’s Benevolent and Protective Association (PBPA), Unit 5, because the City refused to credit him for his earlier years of service with the Police Department following the completion of his probationary period. The City opposed the grievance. Allin’s grievance was submitted to arbitration, but the City again opposed. By a decision dated January 24, 1991, the arbitrator ruled against Allin, finding that he was not entitled to credit for his earlier years of service, from 1980 through 1986, for purposes of calculating his seniority, vacation and sick pay benefits. Plaintiffs’ Appendix to the Memorandum in Opposition to Defendant’s Motion for
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Summary Judgment, Ex. A to Attachment 2, Report and Decision of Arbitration.
During the relevant time period at issue in this case, the City’s Police Department was actively trying to recruit African-Americans and other minority groups. In so doing, the City worked closely with National Organization of Black Law Enforcement (NOBLE) and the Illinois State Police. Plaintiffs’ Appendix to the Memorandum in Opposition to Defendant’s Motion for Summary Judgment, Attachment 3, Deposition of John Harris (Harris Dep.) at 19. From October 1995 to June 2003, John Harris was Chief of Police of Springfield, Illinois Police Department. Id. at 7. His duties as the Chief of Police included budgeting, staffing, meetings, managing, directing and controlling. As the Chief of Police, Harris reported directly to the Mayor. Id. at 8. Chief Harris also played a limited role in hiring and recruiting new police officers. Id. at 9. Chief Harris testified in his deposition that the Mayor had the ultimate authority in implementing the policies of the Police Department and in hiring and recruiting police officers. Id. at 8, 11. Chief Harris admitted in his deposition that the actual hiring of police officers and the process leading to the hiring of police officers are governed by the Springfield Civil Service Commission. Id. at 11.
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According to the City’s former Director of the Department of Human Resources Gina Larkin, the City worked closely with three organizations to increase its minority recruitment: the local chapter of the NAACP, the Springfield Ministerial Alliance, and the Springfield Urban League.3 Larkin Dep. at 14-15. The Human Resources Department maintained contact with the local organizations and used such contacts to recruit more minorities; it also advertised in newspapers that had a high minority readership to attract minority candidates. Id. at 15. Larkin testified that the City’s practice of recruiting more minorities was in place before she started her job with the City in May of 1995. Id. at 16. Donald Kliment, the present Chief of the Police Department, testified that in 1999 and 2000, and in earlier years, the City sought to actively recruit minority police officers.4 Id. at 28.
Plaintiffs point to City patrol officer Donald Schluter as an individual who was treated more favorably by the City than they. Schluter is an African-American male. Schluter began employment with the City on
3Larkin was employed by the City from May of 1995 through May of 2003. 4Kliment has been the Chief of Police since June of 2003. Plaintiffs’ Appendix to the Memorandum in Opposition to Defendant’s Motion for Summary Judgment, Attachment 5, Deposition of Don Kliment (Kliment Dep.) at 6. Prior to that he was the President of the Union from 1996 through June of 2003. Id. at 8.
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April 4, 1994, but left in good standing on November 12, 1999. On October 29, 1999, Schluter informed the Police Department that he was voluntarily terminating employment with the City effective November 12, 1999. On November 9, 1999, Chief Harris received an interdepartmental memorandum from Schluter requesting a leave of absence. Schluter made the request three days before his effective date of resignation because, in the event he changed his mind, he wished to return to the City’s employ. Schluter’s request was denied.
Schluter was not eligible for a leave of absence because of his intention to work for a for-profit entity.5 Upon being informed of the denial, Schluter resigned from the Police Department to work for Norfolk Southern Railroad in St. Louis, Missouri, as a conductor. Once Schluter submitted his resignation papers, his resignation became irrevocable according to the City ordinance. See Springfield City Code § 36.60. After three months of working as a conductor, Schluter wished to return to the Police Department and so he sent a letter to Chief Harris, on January 31,
5The City’s leave of absence policy which applies to police officers provides in part that “[l]eaves of absence shall not be granted for the purpose of allowing an employee to work for a for-profit entity.” Plaintiffs’ Appendix to the Memorandum in Opposition to Defendant’s Motion for Summary Judgment, Attachment 11, Springfield City Code § 36.58 (a)(4).
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2000, expressing his interest to return. Schluter noted in the letter that “with the department’s lack of minority recruitment, [he] could fill a void without the department having to spend additional funds in training someone.” Plaintiffs’ Appendix to the Memorandum in Opposition to Defendant’s Motion for Summary Judgment, Attachment 12, Schluter letter dated January 31, 2000.
By a letter dated February 14, 2000, Chief Harris informed Schluter that he had received the letter and that he would look into his request to return to the Police Department. Chief Harris further stated in the letter that as soon as he heard from the Human Resources Department, he would contact him. Plaintiffs’ Appendix to the Memorandum in Opposition to Defendant’s Motion for Summary Judgment, Attachment 15, Harris letter dated February 14, 2000. At the time Schluter made his request to return, Chief Harris was aware of Schluter’s race. Chief Harris believed that Schluter was a qualified candidate and so wanted him to return as there was also a need for racial diversity on the Police Department. In assisting Schluter’s return to the City’s Police Department, Chief Harris considered Schluter’s race. Plaintiffs’ Appendix to the Memorandum in Opposition to Defendant’s Motion for Summary Judgment, Attachment 17, Deposition
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of John Harris taken in relation to Springfield Policemen’s Benevolent and Protective Association, Unit No. 5 v. City of Springfield, et al., Case No. 00 MR 180, pending before the Circuit Court of Sangamon County at 26. Chief Harris believed that, in order to return Schluter to the City’s employ, an action from the Springfield City Council was necessary. Harris Dep. at 40. In general, if an action from the City Council was required, Chief Harris would make a request to the Mayor’s office. The Mayor would then make recommendations to the City Council. Id. at 42-43.
At the time Schluter made his request to return to the City’s employ, the City was in the testing phase to create an eligibility roster. Kliment Dep. at 18-19. Chief Harris believes that he discussed the Schluter situation with Frank McNeil, an alderman of Ward 2 of the City of Springfield and a member of the Springfield City Council. Harris Dep. at 45. McNeil testified in his deposition that Harris would generally talk to him about minority recruiting issues. Plaintiffs’ Appendix to the Memorandum in Opposition to Defendant’s Motion for Summary Judgment, Attachment 7, Deposition of Frank McNeil (McNeil Dep.) at 6. McNeil testified that he did not recall taking a position on Schluter’s salary, seniority or the method of calculating his sick and vacation pay upon his
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return to work. Id. at 39-40. McNeil testified that one of the reasons he considered in supporting Schluter’s return was the fact that he was interested in having qualified minorities on the Police Department. Id. at 41. McNeil further testified that members of the City Council were also concerned about the lack of diversity in the Police Department. Id. at 23. McNeil testified that he was aware that Schluter had a good work record while he was on the Police Department and that he was a qualified officer. Id. McNeil admitted that, at the time the passage of an ordinance to allow Schluter’s return was under consideration, Chief Harris could not have granted a retroactive leave of absence without the City Council enacting an ordinance. Id. at 43.
On March 28, 2000, the City passed Ordinance 198.3.00 (the Schluter Ordinance) which enabled Schluter to return as a City patrol officer with his previous level of seniority. McNeil sponsored the passage of the Schluter Ordinance. McNeil testified that the Schulter Ordinance was not a change in City policy because the Ordinance did not, on its face, amend § 36.58 (a)(4) of the Springfield City Code, which provides that “[l]eaves of absence shall not be granted for the purpose of allowing an employee to work for a for-profit entity.” Springfield City Code §
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36.58(a)(4); McNeil Dep. at 30-31. McNeil further testified as follows:
Q. Okay. All right. I am curious and as I read the four corners of the [Schluter] ordinance and specifically Sections 1, 2, 3 and 4 of the ordinance that appear on page 2 of the ordinance only applies [sic] to Don Schluter and his efforts to come back to the city. A. I would say that’s correct. Q. And if a month later there was another police officer similarly situated to Don Schluter who also wanted to come back the ordinance does not address that situation. A. I would say no, but I would say I think the way we looked at it would have to be a case by case basis. Q. Why was that? A. And I think that as I recall and, you know, this is still my fuzzy recollection, each case had to be handled on its own merits.
McNeil Dep. at 50-51. The face of the Schluter Ordinance recited in part
that rehiring of Schluter promoted diversity in the ranks of the Springfield
Police Department, which was in the public interest.6
6The Schluter Ordinance specifically provided as follows:
AN ORDINANCE GRANTING A RETROACTIVE LEAVE OF ABSENCE TO POLICE PATROL OFFICER DONALD ANTHONY SCHLUTER
198.3.00 WHEREAS, Donald Anthony Schluter began his employment a police officer in
the Springfield Police Department on April 4, 1994; and, WHEREAS, on November 9, 1999, Donald Anthony Schluter requested a 3
month leave of absence; and, WHEREAS, Police Chief John Harris denied that leave of absence as a result of
Section 36.58(a)(2)(4) of the City of Springfield Code of Ordinances; and, WHEREAS, Donald Anthony Schluter voluntarily terminated his employment
as a police officer with the Springfield Police Department on November 12, 1999; and WHEREAS, Donald Anthony Schluter was a police officer in good standing when
he chose to voluntarily terminate his employment with the Springfield Police
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Department; and, WHEREAS, at the time of Donald Anthony Schluter’s voluntary separation from
his employment as a police officer in the Springfield Police Department he was assigned as a Neighborhood Patrol Officer to Southeast High School where, all times, he performed the duties of his position to the satisfaction of his superiors and supervisors within the Springfield Police Department; and,
WHEREAS, on January 31, 2000, Donald Anthony Schluter requested that he be allowed to return to his former position as a police officer with the Springfield Police Department; and,
WHEREAS, if Donald Anthony Schluter had been granted a leave of absence on November 9, 1999, he would have been eligible to return to his former position of police officer with the Springfield Police Department on January 31, 2000 pursuant to Section 36.58(a) of the City of Springfield Code of Ordinances; and,
WHEREAS, there is currently a need for police officers in the Springfield Police Department; and,
WHEREAS, there is currently no Police Patrol Officer Eligibility List in place from which new police officer candidates may be hired; and,
WHEREAS, Police Chief John Harris has requested that he be allowed to return Donald Anthony Schluter to his former position as a police officer in the Springfield Police Department; and,
WHEREAS, it costs the City of Springfield $2,200.00 to send a new police officer candidate to basic training at a certified police academy; and
WHEREAS, if Donald Anthony Schluter were returned to his former position as a police officer in the Springfield Police Department, the City would save the taxpayers of the City of Springfield the expense of having to train a new police officer candidate to fill the position formerly held by Donald Anthony Schluter; and,
WHEREAS, it cost the City of Springfield $350.00 to have a new police officer candidate under go [sic] a pre-employment medical screening necessary to ensure that the candidate has the physical capabilities required to perform the duties of a police officer in the Springfield Police Department; and;
WHEREAS, it cost the City of Springfield $352.00 to have a new police officer candidate under go [sic] a pre-employment psychological screening to ensure that the candidate has the mental capabilities required to perform the duties of a police officer in the Springfield Police Department; and;
WHEREAS, if Donald Anthony Schluter were returned to his former position as a police officer in the Springfield Police Department, the City would save the taxpayers of the City of Springfield the expense of the medical and psychological screening which would be required if a new police officer candidate were hired to fill the position formerly held by Donald Anthony Schluter; and,
WHEREAS, it was not the intent of the City Council, in enacting Section 36.58(a)(2)(4) of the City of Springfield Code of Ordinances, to preclude the Chief of the Springfield Police Department from returning a qualified individual who voluntarily
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The Schluter Ordinance applied solely to Schluter and no one else,
meaning no other individuals who wished to return to the City’s employ
could return and be granted a retroactive leave of absence under the
Ordinance, unless a similar and separate ordinance was passed providing for
such a leave. Chief Harris testified that he was not involved in the decision
to enact an ordinance that applied only to Schluter. Harris Dep. at 47. The
Schluter Ordinance authorized Schluter to be reinstated to his previous rank
of patrol officer, without having to go through any testing process or be
placed on an eligibility roster, which is generally required. The only loss of
seniority Schluter had was for the four-month period he was gone. Upon
terminated his employment in good standing to his former position as a police officer in the Springfield Police Department under the circumstances set forth herein;
WHEREAS, it is in the public interest and furthers the important public goal of ensuring public safety to have qualified individuals serving as police officers in the Springfield Police Department; and,
WHEREAS, it is in the public interest to have a diversity in the ranks of the Springfield Police Department; and,
NOW THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF SPRINGFIELD, ILLINOIS:
Section 1: The City Council of the City of Springfield, Illinois hereby grants Donald Anthony Schluter a retroactive leave of absence.
Section 2: Donald Anthony Schluter shall be returned to his position as a Springfield police officer upon his immediate return from leave of absence;
Section 3: Donald Anthony Schluter shall not accrue any seniority, vacation leave, sick leave[,] personal leave or other benefits of employment for the period in which he was absent from his position as a police officer in the Springfield Police Department;
Section 4: This ordinance shall become effective immediately upon its passage.
Plaintiffs’ Appendix to the Memorandum in Opposition to Defendant’s Motion for Summary Judgment, Attachment 10, Schluter Ordinance.
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his return, Schluter received credit for his prior years of service. Plaintiffs allege that they “. . . received wages and benefits calculated under a method which provides each of them less favorable treatment than that provided to Donald A. Schlueter [sic].” Complaint (d/e 1), ¶ 14.
Shortly following the passage of the Schluter Ordinance, the Springfield PBPA, Unit 5, filed a lawsuit against both the City and Schluter challenging the enactment of the Schluter Ordinance. The Court takes judicial notice of the following: (1) the lawsuit filed in the Circuit Court of Sangamon County, Illinois, Springfield Policemen’s Benevolent and Protective Association, Unit 5 v. City of Springfield, Illinois, Case No. 00 MR 180; (2) the August 17, 2001, Order entered by the Circuit Court of Sangamon County; and (3) the April 26, 2002, Order issued by the Illinois Appellate Court.7 See Toney v. Burris, 829 F.2d 622, 626-27 (7th Cir. 1987) (“Federal courts must take judicial notice of the statutory and common law of any state of the union without pleading or proof. This is
7The state trial court granted the Union partial summary judgment finding that the portion of the Schluter Ordinance giving Schluter his prior years of seniority credit was illegal. The Appellate Court, however, reversed the decision of the trial court and dismissed the case with prejudice. The Appellate Court held that the Union lacked standing to bring suit. Plaintiffs’ Appendix to the Memorandum in Opposition to Defendant’s Motion for Summary Judgment, Attachment 18, Circuit Court Order entered August 17, 2001 & Illinois Appellate Court Order entered April 26, 2002.
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especially true of the laws of the state in which the district court sits. The
rule applies with equal force to matters of public record such as state
statutes, city charters, and city ordinances.”) (internal quotations and
citations omitted).
According to the Plaintiffs, they wanted to see the progress of the
lawsuit initiated by the Union before they decided to file their own lawsuit.
On December 11, 2002, Plaintiffs formally sent a letter to Chief Harris
expressing their interest in being restored their prior years of service as the
City had done for Schluter. Plaintiffs’ Appendix to the Memorandum in
Opposition to Defendant’s Motion for Summary Judgment, Attachments 13
& 14, Groesch, Shaffer and Allin Memorandum dated December 11, 2002.8
8The Memorandum states in part:
The undersigned seek parity in treatment with the treatment with [sic] the City has provided Mr. Schluter. The facts and circumstances surrounding his resumption of employment with the City are no different than our situations. According, we request that: A. our seniority be readjusted so that our years of service prior to leaving the
employ of the Department would be credited to each of us for seniority purposes; B. our salaries under the applicable pay scales be readjusted so that our years of service prior to leaving the employ of the Department would be utilized in determining our pay level; C. we receive a sum of money representing the difference between what our salary has been since returning to the employ of the City and what it would have been had it been calculated utilizing our earlier years of service; D. our vacation entitlement be readjusted so that our earlier years of service are credited for purposes of determining our vacation benefits; and
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In their Memorandum, the Plaintiffs requested that they be treated the
same way as the City had treated Schluter in crediting him for his earlier
years of service with the Police Department. In short, Plaintiffs were
requesting credit for their prior years of service, which would require an
action by the Springfield City Council. Chief Harris did not follow through
on their requests. When asked what he thought distinguished Schluter’s
situation from the situations of Groesch, Allin and Shaffer, Chief Harris
testified as follows:
Q. Okay. In your mind is there a difference between Tony Schluter’s circumstances and the circumstances of Groesch, Allin and Shaffer? A. Yes. Q. And what is the difference that you see in their positions? A. Well, one is that there was, for Groesch specifically he was granted or requested and granted a leave of absence and
E. we be restored the unused sick days we forfeited when we left the Department.
We understand that the relief we are requesting may require the approval of the Springfield City Council. We further understand that you supported the ordinance which was adopted by the City Council for Mr. Schluter. We ask that you provide similar support with respect to the relief we are requesting.
We are prepared to meet with you to discuss our concerns. We would appreciate it if you or a representative of your office would contact us within the next fourteen (14) days so that we might arrange a time to meet for the purpose of discussing these concerns. We thank you for your anticipated cooperation.
Groesch, Shaffer and Allin Memorandum dated December 11, 2002.
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then he was gone an extreme amount of time. The others were I believe just gone a large amount of time. Those are the differences I see. Q. And in Tony Schluter’s case he was gone a much shorter period of time? A. Much shorter period of time and had requested a leave of absence but had been denied. Q. In your mind is there a difference between the fact that Officers Groesch, Allin and Shaffer had already been rehired and had worked for a number of years before they made their request for these back benefits and the fact that Tony Schluter was provided with that before he was actually rehired. A. That is a difference.
Harris Dep. at 69-70. McNeil testified that Chief Harris never brought to
his attention the requests made by the Plaintiffs. Id. at 57.
Plaintiffs cite a report prepared by the law firm of Husch &
Eppenberger, LLC, at the request of the City. Plaintiffs’ Appendix to the
Memorandum in Opposition to Defendant’s Motion for Summary
Judgment, Attachment 16 Husch & Eppenberger Report dated April 9,
2003 (Husch Report). The City commissioned Husch & Eppenberger, LLC,
to investigate charges of racism in the Police Department. The Husch
Report states, in part:
Many expressed resentment that women and minorities appeared to get special treatment, in hiring, placement, and advancement. Based upon several interviews, including Chief Harris’, race and gender are taken into consideration at various stages, including hiring, work assignments, promotions, and
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determination of disciplinary action or determination of the need for an internal affairs investigation. Id. at 58-59 (emphasis in original).
On April 3, 2003, Plaintiffs filed a suit against the City in the Illinois Circuit Court for the Seventh Judicial Circuit, alleging a cause of action under the equal protection clause of Article I, Section 2 of the Illinois Constitution of 1970. On November 10, 2003, the Circuit Court issued an order dismissing Plaintiffs’ state court complaint for failure to file within the application statute of limitations under state law. On March 2, 2004, Plaintiffs filed a charge of discrimination with the Equal Employment Opportunity Commission. The Illinois Appellate Court for the Fourth District affirmed the judgment of the Circuit Court on July 22, 2004. Plaintiffs filed the instant lawsuit on July 27, 2004.
ANALYSIS The Defendant moves for summary judgment. At summary judgment, the Defendant must present evidence that demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). The Court must consider the evidence presented in the light most favorable to the Plaintiffs. Any doubt as to the existence
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of a genuine issue for trial must be resolved against the Defendant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Once Defendant has met its burden, Plaintiffs must present evidence to show that issues of fact remain with respect to an issue essential to their case, and on which they will bear the burden of proof at trial. Celotex Corp., 477 U.S. at 322; Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). When viewed in the light most favorable to the Plaintiffs, issues of fact exist for trial.
As a preliminary matter, the Court notes that by a Text Order dated July 6, 2006, this Court dismissed with prejudice all claims for monetary damages accruing to Plaintiff Shaffer before January 19, 2005. After Shaffer filed for bankruptcy on January 19, 2005, the City purchased Shaffer’s then existing claim from the Trustee in bankruptcy. Accordingly, Shaffer is barred from pursuing any claim for monetary damages accruing prior to January 19, 2005.
The Court further notes that Defendant requests summary judgment on Plaintiffs’ claim for damages arising prior to April 3, 2003, on the grounds of res judicata, collateral estoppel and/or the statute of limitations. Defendant initially requested the dismissal of such claims in its Motion to
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Dismiss (d/e 4) based on the above grounds. As noted earlier, Plaintiffs filed a suit against the City with the Illinois Circuit Court for the Seventh Judicial Circuit on April 3, 2003, alleging a cause of action under the equal protection clause of Article I, Section 2 of the Illinois Constitution of 1970. In an order dated November 10, 2003, the Circuit Court dismissed Plaintiffs’ state court complaint for failure to file within the applicable statute of limitations under state law. In a decision dated July 22, 2004, the Appellate Court of Illinois for the Fourth District affirmed the judgment of the Circuit Court.
In the present case, Plaintiffs allege that with every paycheck they are paid, they are treated less favorably than Schluter. In its February 1, 2005, Opinion this Court noted, relying on the Seventh Circuit case law, that every paycheck Defendant pays each Plaintiff is a separate, discrete, potentially discriminatory act, including the paychecks paid to the Plaintiffs after the Plaintiffs filed their April 3, 2003, state court complaint. This Court reasoned as follows:
Therefore, under [Perkins v. Bd of Trustees of Univ. of Ill.], Plaintiffs’ claims under Title VII, which arise from paychecks received after they filed their April 3, 2003, state court complaint, do not share an “identity of cause of action” with the state court action. Instead, they are allegedly “wrongful
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events . . . separated by time and function . . .” from the allegedly discriminatory paychecks paid to the Plaintiffs before the state court claim was filed. Perkins, 116 F.3d [235, 237 (7th Cir. 1997)]. For that reason, Plaintiffs’ claims under Title VII, arising from paychecks paid to them after the state court claim was filed on April 3, 2006, are not barred by the doctrine of res judicata.
Further, the same logic extends to Plaintiffs’ claims arising under 42 U.S.C. § 1983 . . . Therefore, each possibly discriminatory paycheck received by the Plaintiffs after they filed their April 3, 2003, state court claim is a separate cause of action, not barred by the doctrine of res judicata.
Opinion dated February 1, 2005 (d/e 11) at 15-16. Implicit in that ruling
is the conclusion that Plaintiffs’ claims for damages arising prior to April 3,
2003, are barred by the doctrine of res judicata.9 As such, Defendant is
entitled to summary judgment on Plaintiffs’ claims for damages arising prior
to April 3, 2003, on the basis of res judicata.10
The Court further finds that Plaintiffs’ claims arising before the date
of the state trial court judgment on November 10, 2003, are also barred
based on res judicata. Plaintiffs prayed for injunctive relief for on-going
9See Discussion in February 1, 2005, Opinion at 8-16. 10Without any citation to authority, Plaintiffs contend that, under Title VII, damages are limited to a period not greater than two years prior to the date a charge of discrimination was filed. Based on this, Plaintiffs argue that their claim for damages under the Act could extend back to March 2, 2002, given that they filed their charges of discrimination with the EEOC on March 2, 2004. This issue was already addressed by this Court in the February 1, 2005, Opinion. See February 1, 2005, Opinion at 17 n. 3. Therefore, the Court need not address this issue.
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injuries in their state court complaint. If their suit had been successful, the prayer would have covered all damages leading up to trial (had the state court action gone to trial). Accordingly, all claims arising before November 10, 2003, the date of the state trial court judgment, are barred by claim preclusion, but claims arising from allegedly discriminatory wages paid after November 10, 2003, are actionable (as long as they satisfy the relevant statute of limitations). Defendant is thus entitled to summary judgment on Plaintiffs’ claims arising before the date of the state trial court judgment on November 10, 2003. The Court now turns to the substantive issues. A. REVERSE RACE DISCRIMINATION CLAIMS UNDER TITLE VII
(COUNTS I, III and V) In Counts I, III, and V, Plaintiffs Groesch, Shaffer, and Allin respectively allege discriminatory treatment in employment based on their race, in violation of 42 U.S.C. § 2000e et seq. Title VII provides: “It shall be an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race . . . .” 42 U.S.C. § 2000e-2(a)(1). This provision prohibits disparate treatment in employment.
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Disparate treatment in employment is often hard to prove. Thus, the courts have developed both direct and indirect methods of presenting evidence at summary judgment to show that issues of fact exist. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). At any trial, however, a plaintiff bears the burden to prove racial discrimination and retaliation. St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 511 (1993). The Plaintiffs may use either the direct or indirect method to show that issues of fact exist on their Title VII disparate treatment claims in Counts I, III, and V and on their § 1983 equal protection claims on Counts II, IV, and VI. Scaife v. Cook County, 446 F.3d 735, 739 (7th Cir. 2006); Forrester v. Rauland-Borg Corp., 453 F.3d 416 (7th Cir. 2006); Eiland v. Trinity Hosp., 150 F.3d 747, 750 (7th Cir. 1998); Stone v. City of Indianapolis Public Utilities Div., 281 F.3d 640 (7th Cir. 2002); Riordan v. Kempiners, 831 F.2d 690, 695-96 (7th Cir. 1987).
To establish disparate treatment under the direct method, a plaintiff presents direct evidence that he suffered an adverse employment action and that his race was a motivating factor. An adverse employment action is a loss of compensation or benefits, such as demotion or denial of promotion, or a material reduction in duties and responsibilities. Smart v. Ball State
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University, 89 F.3d 437, 441 (7th Cir. 1996). Furthermore, direct evidence means evidence that establishes each element without resort to inferences from circumstantial evidence. Stone, 281 F.3d at 644.
Plaintiffs have presented sufficient evidence to establish that they suffered an adverse employment action. The evidence shows that the adverse employment action in this case occurred when the Plaintiffs renewed their requests for restoration of service credit in December of 2002, seeking the same benefits that the City had afforded to Schluter under the Ordinance, and the City Council failed to act upon the Plaintiffs’ requests. Even though the Plaintiffs did not present their requests to the City Council directly, the evidence in the record supports an inference that the decisionmakers (members of the City Council) knew that there were police officers other than Schluter who wanted the same benefits that were afforded to Schluter under the Schluter Ordinance. The Schluter Ordinance applied solely to Schluter and no one else. As quoted above, the face of the Schluter Ordinance recited in part:
NOW THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF SPRINGFIELD, ILLINOIS:
Section 1: The City Council of the City of Springfield, Illinois hereby grants Donald Anthony Schluter a retroactive leave of absence.
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Section 2: Donald Anthony Schluter shall be returned to his position as a Springfield police officer upon his immediate return from leave of absence;
Section 3: Donald Anthony Schluter shall not accrue any seniority, vacation leave, sick leave[,] personal leave or other benefits of employment for the period in which he was absent from his position as a police officer in the Springfield Police Department;
Section 4: This ordinance shall become effective immediately upon its passage.
Schluter Ordinance. The fact that the Schluter Ordinance was drafted to
apply only to one person supports an inference that the City Council knew
that other returning officers wished to have their prior service credit at the
time the Schluter Ordinance was enacted. The evidence that the City
formally opposed Allin’s grievance filed in 1991 when he did not receive his
prior service credit, as promised by the then Deputy Chief of Operation,
combined with evidence that Groesch had sought similar relief from an
Alderman in 1994, all supports an inference that the City Council knew at
the time the Schluter Ordinance was passed that others wanted their prior
service credit.11 Additionally, the instant lawsuit and the deposition of
11According to Groesch, in 1994 he contacted Alderman Andrews inquiring whether the City would enact an ordinance allowing experienced officers to return to the Police Department without going through the hiring process, as the City of Champaign had done. Groesch states that Andrews later told him that he had discussed the matter with other members of the Springfield City Council but could not garner any support for the idea.
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Alderman McNeil further support an inference that the City Council was put on notice of the Plaintiffs’ requests and their requests have not been granted. The Plaintiffs have provided evidence that they suffered an adverse employment action.
Plaintiffs claim that they have presented direct evidence of discrimination. Direct evidence consists of evidence that proves discrimination without the need for inference or presumption. Troupe v. May Dept. Stores Co., 20 F.3d 734, 736 (7th Cir. 1994). Such evidence includes a direct acknowledgment of discrimination or circumstantial evidence which shows an intent to discriminate. Id. Plaintiffs first point to the enactment of the Schluter Ordinance. Plaintiffs contend that the enactment of the Schluter Ordinance, benefitting solely one individual, namely Schluter, reveals discriminatory intent on the part of the City. The face of the Schluter Ordinance specifically provides that one of the reasons for enacting the Ordinance is to promote diversity in the ranks of the Springfield Police Department, as it is in the public interest. This language shows that in enacting the Schluter Ordinance the Springfield City Council considered Schluter’s race as a factor in re-hiring him. However, the enactment of this Ordinance in March of 2000 does not state why the
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Plaintiffs were not given credit for their earlier service. Plaintiffs need to rely on inference to make their case; therefore, they lack direct evidence of a discriminatory intent.
Plaintiffs next cite statements made by Chief Harris in which he testified that he supported and recommended the passage of the Schluter Ordinance because he wished to have an African-American return to the Police Department, as retention of minorities on the Police Department was important to him. Any statement attributed to Chief Harris cannot constitute direct evidence of discriminatory intent, because Chief Harris was not a decisionmaker.12 In other words, Harris did not have a final say in authorizing Schluter’s return. Nor did he have a final say in enacting an ordinance for the purpose of restoring each of the Plaintiffs’ prior years of service.
More importantly, Harris’ statements concerning his support for Schluter’s return and the enactment of the Schluter Ordinance, as well as his statements relating to the City’s increased efforts to recruit minorities in the Police Department, are not direct evidence of discriminatory intent
12“A decisionmaker is the person responsible for the contested decision.” Davis v. Con-Way Transp. Central Express, Inc., 368 F.3d 776, 783 (7th Cir. 2004).
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on the part of the City against the Plaintiffs with respect to the adverse employment action at issue here. One could favor increasing minorities on the police force and returning Officer Schluter to duty without intending to discriminate against the Plaintiffs. In order to create a genuine issue of material fact based on direct evidence, Plaintiffs must point to admissions by decisionmakers that race was a motivating factor in giving preferential treatment to Schluter and not the Plaintiffs. The only statements that Plaintiffs point to are statements attributed to Harris, a non-decisionmaker. See Rogers v. City of Chicago, 320 F.3d 748, 753 (7th Cir. 2003). Plaintiffs have failed to present evidence establishing a direct connection between the retroactive leave of absence afforded to Schluter and the alleged adverse employment action at issue in this case. As such, Chief Harris’ statements do not indicate intentional discrimination without inferring or presuming the actual decisionmakers’ (members of the City Council) motivation.
Plaintiffs also cite to Schluter’s letter to Chief Harris in which he stated that there was a lack of minorities on the Police Department. However, this statement was made by Schluter, not a City official. The statement is also a statement of fact about the make-up of the Police Department. The statement does not reveal a discriminatory intent on the
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part of the City Council, or anyone else, against the Plaintiffs. This statement therefore does not constitute direct evidence of intentional discrimination without inferring or presuming the City Council’s motivation.
Plaintiffs further cite to statements made by McNeil, the Schluter Ordinance sponsor, who stated that he supported the idea of recruiting more minorities on the Police Department and that Schluter’s race was one of the factors he considered in advocating the passage of the Ordinance. The fact that McNeil supported Schluter’s return to the Police Department, because he was interested in promoting diversity, does not show that he or any other member of the City Council discriminated against the Plaintiffs with respect to the adverse employment action at issue.
Plaintiffs next point to the City’s increased efforts to recruit minorities in the Police Department during the time period Schluter sought to return to the City’s employ. Plaintiffs contend that Harris, Kliment, and Larkin have all testified that the City was aggressively trying to increase its efforts to recruit African-Americans in the Police Department. The fact that the City increased its efforts to recruit minorities does not show that the City discriminated against the Plaintiffs. It only shows that the City
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encouraged qualified minority candidates to apply for positions in the Police Department. Having a racially diverse police department is a worthy goal. These efforts do not constitute direct evidence of discriminatory intent on the part of the Springfield City Council with respect to these Plaintiffs.
Plaintiffs also point to the fact that Chief Harris never offered any reason for supporting the restoration of Schluter’s earlier years of service and denying the same benefits to them. However, in his deposition, Chief Harris stated that the time the Plaintiffs were gone from the department was much greater than that for Schluter and the fact that the Plaintiffs made their request for prior service credit after their rehire were differences between them and Schluter. The fact that Harris did not state these reasons earlier does not provide direct evidence of discrimination by the Springfield City Council.
Finally, Plaintiffs cite to the Husch Report which shows that the City provided preferences to minorities, including African-Americans, with respect to employment on the Police Department. As quoted above, the Husch Report provides in part:
Many expressed resentment that women and minorities appeared to get special treatment, in hiring, placement, and advancement. Based upon several interviews, including Chief
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Harris’, race and gender are taken into consideration at various stages, including hiring, work assignments, promotions, and determination of disciplinary action or determination of the need for an internal affairs investigation. Husch Report, pp. 58-59 (emphasis in original). As an initial matter, the Court notes that the City challenges the admissibility of the Husch Report on the basis that it is not a pleading, deposition, answer to interrogatory, admission or an affidavit as required under Fed. R. Civ. P. 56(a). The City additionally argues that the Husch Report is inadmissible because it was never disclosed by the Plaintiffs in their Rule 26 disclosure. The Report appears to be an admission of a party opponent because it was prepared by the Police Department’s agent, and the subject matter of the statement was within the scope of its agency. Fed. R. Evid. 801(d)(2)(D). Further, statements attributed to Chief Harris appear to be an admission of a party opponent because the statement was within the scope of Chief Harris’ agency. Fed. R. Evid. 801(d)(2)(D) & 805. Also, the Plaintiffs had no reason to disclose the Report in their Rule 26 disclosure because the Report itself was prepared at the request of the City for the benefit of the City. Based on what has been provided, at least parts of the Report appear to be admissible as statements by a party’s agent. Fed. R. Evid. 801(d)(2)(D).
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Turning to the merits, the Husch Report does not constitute direct
evidence of intent. The Plaintiffs have failed to present evidence showing
a direct connection between the findings of the Husch Report and the
adverse employment action to which they were subjected.13 Because
Plaintiffs have failed to present direct evidence of discrimination, the Court
turns to its analysis of whether discriminatory intent has been proven under
the indirect method.
If a plaintiff does not have direct evidence of disparate treatment, he
may proceed at summary judgment under the indirect method. In a
disparate treatment case, a plaintiff must present evidence of a prima facie
case that: (1) he is a member of a protected class; (2) he was meeting the
employer’s reasonable expectations; (3) despite this, he suffered an adverse
employment action; and (4) a similarly-situated person outside of the
13Plaintiffs appear to rely on Ballance v. City of Springfield to argue that the Husch Report constitutes direct evidence. See Ballance, 424 F.3d 614 (7th Cir. 2005). Plaintiffs’ reliance on Ballance is misplaced. In Ballance, the Seventh Circuit found that the Report in question satisfied one of the elements needed to establish a prima facie case of reverse racial discrimination under the indirect method of proof, namely, that background circumstances exist to show an inference that the employer has reason or inclination to discriminate against whites. The Seventh Circuit explained in Ballance that the Husch Report in question supported “the inference that the police department, through Chief Harris, gave preferences to minorities and women in the disciplinary process.” Id. at 618. The Seventh Circuit did not find that the Husch Report constituted direct evidence. Moreover, in this case specifically, the Husch Report does not show intent to discriminate without inferring or presuming the motive of the decisionmakers.
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protected class was treated more favorably. See Gorence v. Eagle Food Center, Inc., 242 F.3d 759, 765 (7th Cir. 2001). To be similarly-situated, a person must be directly comparable in all respects. Burks v. Wisconsin Dept. of Transp., 464 F.3d 744, 751 (7th Cir. 2006). In addition to proving the above factors, a Title VII plaintiff claiming reverse racial discrimination must further demonstrate “that ‘background circumstances’ exist to show an inference that the employer has ‘reason or inclination to discriminate invidiously against whites’ or evidence that ‘there is something ‘fishy’ about the facts at hand.’” Ballance, 424 F.3d at 617 (citing Phelan v. City of Chicago, 347 F.3d 679, 684-85 (7th Cir. 2003); Mills v. Health Care Serv. Corp., 171 F.3d 450, 455-57 (7th Cir. 1999)); see also Ineichen v. Ameritech, 410 F.3d 956, 959 (7th Cir. 2005).
If Plaintiffs can establish the above elements, then the burden shifts to the Defendant to come forward with a legitimate, non-discriminatory reason for its alleged adverse employment action. Once the Defendant presents its reason, the burden shifts to the Plaintiffs to show that Defendant’s reason is a pretext, meaning the decisionmakers who made the decision did not honestly believe that the stated reason was the basis for their decision. Bell v. E.P.A., 232 F.3d 546, 549-50 (7th Cir. 2000).
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As discussed above, Plaintiffs have presented sufficient evidence to show that they suffered an adverse employment action. Also, it is undisputed that the Plaintiffs performed their job according to the City’s legitimate expectations and that they are members of a protected class. Accordingly, the next issue is whether Plaintiffs have presented sufficient evidence to show that they are similarly situated to Schluter in all material respects. Employees are similarly situated if they are directly comparable in all material respects. Ineichen, 410 F.3d at 960. This means that the Plaintiffs must “show not only that the employees reported to the same supervisor, engaged in the same conduct, and had the same qualifications, but also show that there were no ‘differentiating or mitigating circumstances as would distinguish . . . the employer’s treatment of them.’” Id. at 960-61 (quoting Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617-18 (7th Cir. 2000)).
Plaintiffs claim that Schluter is directly comparable to them in all material respects. It is undisputed that the Plaintiffs and Schluter left the City’s employ in good standing to pursue other career opportunities with for-profit corporations. It is further undisputed that the Plaintiffs and Schluter sought to return to the City’s employ following their voluntary
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resignations from the Police Department. Defendant, however, argues that Plaintiffs are not similarly situated to Schulter because Schluter left the City’s employ for about four months before he was rehired by the City, and each of the Plaintiffs was gone for several years. Groesch was away for about 8 years; Shaffer was away for about 6 years; and Allin was away for about 2 years. The evidence, however, reveals that Allin attempted to return to the City’s employ within six months after leaving the Police Department. In his effort to return, Allin submitted an application for employment, underwent the necessary testing, and was placed on a police patrol officer eligibility roster, as instructed by the then Personnel Director of the City. Allin was finally rehired by the City in January of 1989. Similarly, Groesch attempted to return to the City’s employ in 1989, shortly following his voluntary resignation in 1988. Between 1989 and September of 1996, he submitted applications, tested to be placed on eligibility lists, and was finally rehired by the City in September of 1996.
The City also argues that the Plaintiffs have not presented evidence showing that the circumstances of the City in 1989 (when Allin was rehired), 1993 (when Shaffer was rehired), or 1996 (when Groesch was rehired) were similar to the circumstances in 2000 (when Schluter was
36

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rehired). The Plaintiffs’ theory, however, is based on the December 2002 renewal of their request for reinstatement of their seniority. There is no evidence in the record showing that the make-up of the City Council in 2002 was different from the make-up of the City Council in 2000, when the Schluter Ordinance was enacted.
Plaintiffs must next demonstrate that background circumstances exist to show an inference that the City has a reason or inclination to discriminate invidiously against them because of their race. The Husch Report indicates that around the time period at issue in this case, the Police Department gave preferential treatment to women and minorities in hiring, placement, and advancement. See Ballance, 424 F.3d at 618 (the Husch Report supports “the inference that the police department, through Chief Harris, gave preferences to minorities and women in the disciplinary process.”). This evidence suggests that background circumstances exist to show an inference that the City may discriminate against whites. Id. Plaintiffs have, therefore, presented sufficient evidence of a prima facie case of discrimination.
The Defendant must therefore present a non-discriminatory reason for restoring Schluter’s prior service credit, but denying the same benefit to
37

3:04-cv-03162-MPM-BGC # 26 Page 38 of 46
the Plaintiffs. The City points to nine non-discriminatory reasons for its actions, as set forth on the face of the Schluter Ordinance: (1) Schluter was an officer in good standing when he voluntarily left the City’s employ; (2) there was a need for police officers; (3) there was no Eligibility List in place from which to hire; (4) Chief Harris wished to return Schluter to service; (5) the City would save $2,200.00 by not sending Schluter to the Police Academy; (6) the City would save $350.00 for pre-employment medical screening; (7) the City would save $352.00 for pre-employment psychological screening; (8) it was in the public interest and furthered the goal of public safety to have qualified individuals serving as police officers of the City; and (9) it was in the public interest to have diversity in the police force. The City also argues that the time frame that the Plaintiffs were off the police force was much greater than that for Schluter and that that difference justifies not restoring their earlier service credits. Finally, the City argues that the enactment of the Schluter Ordinance constituted a change in City policy, and Plaintiffs were not entitled to have the change applied retroactively to them.
Plaintiffs must now present evidence that the stated reasons are pretextual. A stated reason is a pretext if the evidence indicates that the
38

3:04-cv-03162-MPM-BGC # 26 Page 39 of 46
stated reason is not the actual reason. Rudin v. Lincoln Land Community College, 420 F.3d 712, 724 (7th Cir. 2005). The evidence does not need to indicate that the actual reason was an improper one, only that the stated reason is not true. There is circumstantial evidence to support a finding that the first 8 stated reasons were not the actual reason and that race was a motivating factor in affording the benefit to Schluter, but denying the same to the Plaintiffs. The majority of the justifications offered by the City in treating Schluter more favorably than the Plaintiffs would equally apply to the Plaintiffs. Plaintiffs, like Schluter, were officers in good standing when they voluntarily left the City’s employ. According to Larkin, the Police Department would create an eligibility list if there was a need for police officers. When the City had a need to recruit new officers, the City would test interested individuals and then create a list. This evidence shows that when the Plaintiffs attempted to return to the City’s employ, there was a need for police officers as well.
The savings gained in training and in medical and psychological examination would apply equally to the Plaintiffs. The evidence further shows that the cost saving justification with respect to training is not a credible reason because, according to Chief Harris, the City was not required
39

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to pay the expense of training new police recruits. Moreover, the cost saving justification offered by the City does not explain why the Plaintiffs, unlike Schluter, were not restored their prior service credit once they renewed their requests for such credit in December of 2002.14
The City’s proffered reason that Chief Harris recommended Schluter’s return does not appear to be the reason because Chief Harris stated that he did not have any decisionmaking authority to authorize Schluter’s return; his role was limited to making recommendations to the Mayor’s office. Harris Dep. at 40, 42-43. Harris testified that the City Council had the ultimate authority to authorize Schluter’s return. Id. at 40.
Additional circumstantial evidence calls into question whether the stated reasons were the actual reasons for the different treatment of Plaintiffs. The fact that the Schluter Ordinance was not a general policy change, but applicable solely to Schluter and no one else, raises an inference that race was a motivating factor in restoring Schluter’s prior service credit, but denying the same benefit to the Plaintiffs. The wording of the
14It is important to note that the issue in this case is not why the Plaintiffs, unlike Schluter, were required to go through the usual hiring process in order to be rehired by the City, but why the Plaintiffs, unlike Schluter, were not given their prior service credit once they renewed their requests for such credit in December 2002.
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Ordinance also raises a question as to whether the Schluter Ordinance
constituted a change in City policy or an exception to the policy for one
person based on race. Alderman McNeil testified that the City Council was
concerned about the low number of minority police officers on the Police
Department and wanted to remedy this issue by returning qualified
minority police officers like Schluter to the police force. This evidence also
raises an inference that race was a motivating factor in restoring Schluter his
prior service credit, but denying the same benefit to the Plaintiffs.
The ninth stated reason--the operational need for diversity--could
be used to justify re-hiring Schluter in the manner he was hired, but it does
not justify failing to award Plaintiffs their prior service credit too.15
Preferences designed to promote diversity are subject to strict
scrutiny. “It is by now well established that ‘all racial classifications
15Plaintiffs erroneously argue that the City’s diversity justification should have been raised as an affirmative defense under Fed. R. Civ. P. 8(c). Plaintiffs are mistaken. “Affirmative defense” is “[a] defendant’s assertion raising new facts and arguments that, if true, will defeat the plaintiff’s or prosecutions’s claim, even if all allegations in the complaint are true.” Black’s Law Dictionary 430 (Bryan A. Garner ed., 7th ed. 1999). The non-discriminatory reason proffered by defendants in Title VII employment discrimination cases does not perform that function. Rather, it is part of this analytical construct established by the Supreme Court in McDonnell Douglas Corp. to analyze employment discrimination cases. This analytical framework allows a defendant to come forward with a legitimate, non-discriminatory reason for the employment action at issue once the plaintiff establishes his or her prima facie case, without having to raise such a defense as an affirmative defense. This analytical framework does not perform the same function performed by an affirmative defense.
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reviewable under the Equal Protection Clause must be strictly scrutinized.’”
Gratz v. Bollinger, 539 U.S. 244, 270 (2003) (quoting Adarand
Constructors, Inc. v. Pena, 515 U.S. 200, 224 (1995)).16 As such, the
evidence must show that the operational need for diversity was justified by
a compelling state interest and that the means chosen (here, the Schluter
Ordinance) was narrowly tailored to accomplish the City’s asserted purpose
of promoting diversity in the Springfield Police Department. Id.; Grutter
v. Bollinger, 539 U.S. 306, 339 (2003) (“Narrow tailoring does, however,
require serious, good faith consideration of workable race-neutral
alternatives that will achieve the diversity the university seeks.”); Petit v.
City of Chicago, 352 F.3d 1111, 1114 (7th Cir. 2003) (citing Adarand, 515
U.S. at 227).
The need for diversity in police departments can be a compelling
interest. The Seventh Circuit has stated in Petit that there is a compelling
16The Court has not found any Seventh Circuit cases addressing whether strict scrutiny (used to review racial classifications under the Equal Protection Clause) should be applied in Title VII disparate treatment cases. The parties do not argue that a different standard should be applied. As such, the Court believes that the strict scrutiny standard is an appropriate standard applicable to Title VII disparate treatment cases as well. The Court further notes that the Defendant does not argue that it was interested in promoting diversity pursuant to an affirmative action plan. Had that been the case, the Court would employ the analytical framework set forth in Johnson v. Transportation Agency, Santa Clara County, California, et al., to determine whether the affirmative action plan is valid. Johnson, 480 U.S. 616, 626-627 (1987).
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state need for diversity in a police department, especially “in a large metropolitan police force charged with protecting a racially and ethnically divided major American city like Chicago.” Petit, 352 F.3d at 1114. In so holding, the Seventh Circuit relied on Grutter in which the Supreme Court found that “student body diversity is a compelling state interest that can justify the use of race in university admissions.” Grutter, 539 U.S. at 325. Plaintiffs also concede that having diversity is in the public interest. In light of the Seventh Circuit’s decision in Petit, the testimonies of Alderman McNeil and Chief Harris, and the Plaintiffs’ concession, the Court finds that there is a compelling state need for diversity in the Springfield Police Department.
The City, however, has failed to present evidence showing that the enactment of the Schluter Ordinance was narrowly tailored to accomplish the City’s stated purpose of promoting diversity in the Police Department and that racially neutral alternatives were unworkable. In Gratz, the Supreme Court held that the University of Michigan’s admission system giving preferential treatment on account of race, by automatically giving 20 points to under-represented minority students, was not narrowly tailored and, thus, violated the Equal Protection Clause. Gratz, 539 U.S. at 270.
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Here, the Schluter Ordinance, assuming it applies only to Schluter, automatically gave preferential treatment to Schluter apparently primarily because of his race; the Ordinance was not narrowly tailored to promote diversity because the same diversity could have been accomplished by crediting Plaintiffs past service credit as well.
In a decision handed down the same day as Gratz, the Supreme Court in Grutter upheld the University of Michigan Law School’s admission policy finding that the admission policy in question gave meaningful individualized consideration of applicants, without making an applicant’s race a decisive factor in ensuring his or her admission to the Law School. Here, there is at least a question of fact as to whether race was the decisive factor in the treatment of the Plaintiffs and Schluter. There are also questions of fact for trial as to whether the Schluter Ordinance constituted a change in City policy which will apply prospectively to other officers of all races in the future, but not the Plaintiffs, and whether the difference in time the Plaintiffs were off the police force, as opposed to Schluter, warrant different treatment. These issues, however, are for the trier of fact to resolve at trial. B. SECTION 1983 EQUAL PROTECTION CLAIM
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(COUNTS II, IV and VI) Section 1983, generally imposes liability on the individual who violated the plaintiff’s rights. Monell v. Department of Social Services of City of New York, 436 U.S. 658, 694 (1978). The Plaintiffs brought the action against the City of Springfield. Each Plaintiff in his § 1983 claim against the City must show that the practice of racial discrimination against him was due to a policy, practice or custom of the City that had the force of law. Killinger v. Johnson, 389 F.3d 765, 771 (7th Cir. 2002); Gable v. City of Chicago, 296 F.3d 531, 537 (7th Cir. 2002). Plaintiffs undisputably are relying on the City’s adoption of the Schluter Ordinance without giving them the same benefit of it. The other elements used to prove a § 1983 Equal Protection claim are the same as those used to prove a prima facie case for disparate treatment claims under Title VII. See e.g., Goodwin v. Board of Trustees of University of Illinois, 442 F.3d 611, 617-18 (7th Cir. 2006); McNabola v. Chicago Transit Authority, 10 F.3d 501, 513 (7th Cir. 1993); Riordan v. Kempiners, 831 F.2d 690, 696-97 (7th Cir. 1987). For the aforementioned reasons, summary judgment must therefore be denied on the Section 1983 Equal Protection claims (Counts II, IV and VI), accruing after November 10, 2003, for Plaintiffs Groesch and Allin and after
45

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January 19, 2005, for Plaintiff Shaffer. THEREFORE, as set forth above, Defendant’s Motion for Summary
Judgment (d/e 19) is ALLOWED in part and DENIED in part. Defendant is entitled to summary judgment on Plaintiffs’ claims for damages arising prior to the state trial court judgment on November 10, 2003. Defendant is further entitled to summary judgment on Plaintiff Shaffer’s claims for monetary damages accruing prior to January 19, 2005. Summary judgment is DENIED in all other respects. The parties are directed to file any Motions in Limine by January 19, 2007. The pretrial conference remains scheduled for February 26, 2007, at 9:00 a.m. IT IS THEREFORE SO ORDERED. ENTER: December 29, 2006.
FOR THE COURT: s/ Jeanne E. Scott JEANNE E. SCOTT
UNITED STATES DISTRICT JUDGE
46

 
 3:04-cv-03162-SEM-BGC # 53 Page 1 of 1

E-FILED
Tuesday, 16 October, 2012 01:41:35 PM Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION

KEVIN GROESCH, GREG SHAFFER And SCOTT ALLIN,
Plaintiffs, v. CITY OF SPRINGFIELD, ILLINOIS, Defendant.

) ) ) ) ) ) CASE NO. 04-3162 ) ) ) )

ORDER

SUE E. MYERSCOUGH, U.S. District Judge:

THIS MATTER comes before the Court on the agreed Stipulation

to Dismiss Case (d/e 52).

IT IS THE ORDER OF THIS COURT that the above proceeding

be dismissed with prejudice with each party to bear its own costs. Case

closed.

ENTER: October 16, 2012

FOR THE COURT:

s/Sue E. Myerscough SUE E. MYERSCOUGH UNITED STATES DISTRICT JUDGE

 
 Case: 3:04-cv-3162 As of: 01/23/2015 07:48 PM CST 1 of 9
CLOSED,REFER
U.S. District Court CENTRAL DISTRICT OF ILLINOIS (Springfield) CIVIL DOCKET FOR CASE #: 3:04−cv−03162−SEM−BGC

Groesch et al v. City of Springfield Assigned to: Judge Sue E. Myerscough Referred to: Magistrate Judge Byron G. Cudmore Case in other court: Seventh Circuit, 07−02932 Cause: 28:1331 Fed. Question: Employment Discrimination
Plaintiff

Date Filed: 07/27/2004 Date Terminated: 10/16/2012 Jury Demand: Both Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question

Kevin Groesch

represented by James P Baker BAKER BAKER &KRAJEWSKI LLC 415 S Seventh St Springfield, IL 62701 217−522−3445 Fax: 217−522−8234 Email: bschrader2@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Greg Shaffer

represented by James P Baker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Scott Allin

represented by James P Baker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
City of Springfield Illinois

represented by Mark K Cullen CITY OF SPRINGFIELD Office of Corporation Counsel Room 313 Municipal Center East 800 East Monroe Street Springfield, IL 62701−1689 217−789−2393 Fax: 217−789−2397 Email: Mark.Cullen@cwlp.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Frank Martinez SOUTHERN ILLINOIS UNIVERSITY SCHOOL OF MEDICINE Room 2133 801 North Rutledge Street P O Box 19619 Springfield, IL 62794−9619 217−545−6602 Fax: 217−545−6603 Email: fmartinez@siumed.edu TERMINATED: 01/30/2012 ATTORNEY TO BE NOTICED

Case: 3:04-cv-3162 As of: 01/23/2015 07:48 PM CST 2 of 9

Geannette S Wittendorf CITY OF SPRINGFIELD Office of Corporation Counsel Room 313 Municipal Center East 800 East Monroe Street Springfield, IL 62701−1689 217−789−2393 Fax: 217−789−2397 Email: geannette.wittendorf@cwlp.com ATTORNEY TO BE NOTICED
James A Lang ILLINOIS ATTORNEY GENERAL 100 W Randolph St Chicago, IL 60601 312−814−5694 Fax: 312−814−4425 Email: jlang@atg.state.il.us TERMINATED: 04/23/2008 ATTORNEY TO BE NOTICED

Date Filed 07/27/2004 07/27/2004 07/27/2004 08/16/2004 09/02/2004 09/02/2004 09/14/2004 09/15/2004
09/27/2004 09/29/2004
09/29/2004

# Docket Text
1 COMPLAINT against City of Springfield , filed by Plaintiffs Scott Allin, Kevin Groesch, Greg Shaffer. (Filing fee $ 150.)(AJ, ilcd) (Entered: 07/28/2004)
Filing fee: $ 150.00, receipt number S005098 (AJ, ilcd) (Entered: 07/28/2004)
2 CERTIFICATE OF INTEREST pursuant to Local Rule 11.3 by Scott Allin, Kevin Groesch, Greg Shaffer. (AJ, ilcd) (Entered: 07/28/2004)
3 SUMMONS Returned Executed by plaintiffs. City of Springfield served on 8/13/2004, answer due 9/2/2004. (MR, ilcd) (Entered: 08/16/2004)
4 MOTION to Dismiss by Defendant City of Springfield. Responses due by 9/16/2004 (Lang, James) (Entered: 09/02/2004)
5 MEMORANDUM in Support re 4 MOTION to Dismiss filed by Defendant City of Springfield. (Attachments: # 1 Exhibit)(Lang, James) (Entered: 09/02/2004)
6 RESPONSE to Motion re 4 MOTION to Dismiss extension of time to respond to Defendant's motion to dismiss filed by Plaintiffs Scott Allin, Kevin Groesch, Greg Shaffer. (Baker, James) (Entered: 09/14/2004)
TEXT ORDER: The Court has received Plaintiffs' Request for an Extension of Time (d/e 6) e−filed as a "Response to Motion to Dismiss". Plaintiffs request that the Court extend the time for them to file a response to Defendant's Motion to Dismiss (d/e 4). Plaintiffs state that Defendant has no objection to the request. THEREFORE, Plaintiffs' Motion is ALLOWED. Plaintiffs are granted leave to file their reply up to and including September 27, 2004. Entered by Judge Jeanne E. Scott on 9/15/04. (AJ, ilcd) (Entered: 09/15/2004)
7 Second MOTION for Extension of Time to File Response to Motion to Dismiss by Plaintiffs Scott Allin, Kevin Groesch, Greg Shaffer. Responses due by 10/12/2004 (Baker, James) (Entered: 09/27/2004)
TEXT ORDER: by Mag. Judge Charles H. Evans. Motion For An AdditionalExtension of Time (d/e 7). Motion ALLOWED. Time extended to and includingOctober 1, 2004, for plaintiffs to respond to defendant's motion to dismiss. Motion states "counsel for the Defendant does not object to this request." Entered by Mag. Judge Charles H. Evans on 9/29/04.(AJ, ilcd) (Entered: 09/29/2004)
Set/Reset Deadlines/Hearings as to 4 MOTION to Dismiss. Responses due by 10/1/2004. (AJ, ilcd) (Entered: 09/29/2004)

Case: 3:04-cv-3162 As of: 01/23/2015 07:48 PM CST 3 of 9

10/01/2004 10/01/2004 10/01/2004 10/04/2004 02/01/2005
02/01/2005 02/09/2005 02/09/2005
02/21/2005 02/23/2005 02/23/2005 03/01/2005
03/02/2005

8 MEMORANDUM in Opposition re 4 MOTION to Dismiss filed by Plaintiffs Scott Allin, Kevin Groesch, Greg Shaffer. (Baker, James) (Entered: 10/01/2004)
9 MOTION requesting that def mtd that it seeks summary judgment be denied or that court defer ruling on motion until disc complete by Plaintiffs Scott Allin, Kevin Groesch, Greg Shaffer. Responses due by 10/15/2004 (Attachments: # 1 Affidavit)(Baker, James) (Entered: 10/01/2004)
10 NOTICE of compliance by Scott Allin, Kevin Groesch, Greg Shaffer of compliance (Baker, James) (Entered: 10/01/2004)
Deadlines and Hearings terminated. Response to motion deadline satisfied 10/1/2004. (AJ, ilcd) (Entered: 10/04/2004)
11 ORDER entered by Judge Jeanne E. Scott on February 1, 2005: Defendant City of Springfield, Illinois' Motion to Dismiss (d/e 4) is DENIED. In light of the court's ruling on Defendant's Motion, the Motion of the Plaintiffs, Kevin Groesch, Greg Shaffer and Scott Allin, Requesting that the Defendant's Motion to Dismiss to the extent it seeks Summary Judgment be Denied, or, in Lieu Thereof, That this Court defer ruling on that motion until the Plaintiffs complete Discovery (d/e 9) is DENIED as moot. The City is directed to file an Answer to Plaintiff's Complaint on or before February 25, 2005. (MAS, ilcd) (Entered: 02/01/2005)
Set/Reset Deadlines: Defendant City of Springfield's Answer due on or before 2/25/2005. (MAS, ilcd) (Entered: 02/01/2005)
12 ANSWER to Complaint with Jury Demand by Defendant City of Springfield.(Lang, James) (Entered: 02/09/2005)
TEXT ORDER: Telephone Status/Scheduling is set for TUESDAY, MARCH 1, 2005, at 10:00 a.m. Court will initiate conference call. Attorneys are directed tocomply with Federal Rules of Civil Procedure 26(f) by meeting as soon as practicable, and in any event at least fourteen (14) days prior to the scheduling conference, and are to submit a proposed discovery plan in writing to the Court at least four (4) days prior to the scheduling conference. Such a plan must include, at a minimum, those items listed in CDIL−LR 26.2(3), Rule 26(f), and CDIL−LR 16.2(E) with proposed deadlines. If a discovery plan is not submitted as required, the discovery conference may not be held and costs may be assessed. Entered by Mag. Judge Evans on 2/9/05. (MAS, ilcd) (Entered: 02/09/2005)
13 CERTIFICATE OF SERVICE by City of Springfield Rule 26 Disclosure (Lang, James) (Entered: 02/21/2005)
14 REPORT of Rule 26(f) Planning Meeting by Kevin Groesch, Greg Shaffer. (Baker, James) (Entered: 02/23/2005)
15 REPORT of Rule 26(f) Planning Meeting by Scott Allin. (Baker, James) (Entered: 02/23/2005)
MINUTE ENTRY for telephone status/scheduling conference held before Magistrate Judge Evans on 3/1/05. Status, scheduling, further proceedings considered. Attys James Baker and James Lang present. Scheduling time limits ordered: (1) No motions to join other parties and to amend pleadings to be filed after 5/1/05; (2) 7/1/05 for plaintiffs to identify testifying experts and provide Rule 26 reports; (3) 8/1/05 for defendant to identify testifying experts and provide Rule 26 reports; (4) 2/28/06 to complete all discovery; (5) 3/15/06 to file dispositive motions; (6) 6/30/06 at 10:00 a.m. for Final Pre−trial Conference (IN PERSON); and (7) 7/10/06 at 9:00 a.m. for trial. See written scheduling order entered 3/1/05. Any conflicts between scheduling order and proposed discovery plan shall be controlled by scheduling order. Entered by Mag. Judge Charles H. Evans on 3/1/05. (MAS, ilcd) (Entered: 03/02/2005)
16 SCHEDULING ORDER entered by Judge Charles H. Evans on March 1, 2005: No motions to join other parties and to amend the pleadings to be filed after May 1, 2005; (2) February 28, 2006 to complete all discovery; (3) March 15, 2006 to file dispositive motions; (4) June 30, 2006 at 10:00 a.m. for a Final Pre−Trial Conference; (5) July 10, 2006 at 9:00 a.m. for trial on the trailing trial calendar; (6) July 1, 2005 for all plaintiffs to identify testifying experts and provide Rule 26

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02/21/2006 02/23/2006
06/12/2006 06/12/2006 06/30/2006 06/30/2006 07/06/2006
07/07/2006 07/07/2006 07/10/2006

reports and August 1, 2005, for defendant to identify testifying experts and provide Rule 26 reports. A CONTINUANCE OF THE TRIAL DATE AND/OR FINAL PRE−TRIAL DATE, DOES NOT ALTER OR EXTEND ANY OF THE OTHER ABOVE DATES. (MAS, ilcd) (Entered: 03/02/2005)
17 First MOTION for Extension of Time to Complete Discovery and Modify Scheduling Order by Plaintiffs Kevin Groesch, Greg Shaffer, Scott Allin. Responses due by 3/7/2006 (Baker, James) (Entered: 02/21/2006)
MINUTE ENTRY: for proceedings on 2/23/06. Telephone hearing regarding Joint Request of the Parties to Modify the Scheduling Order (d/e 17). Attys James Baker and James Lang present. Motion (d/e 17) ALLOWED. Scheduling Order dated 3/1/05 amended as follows: 5/30/06 to complete all discovery; 6/13/06 to file dispositive motions; 10/2/06 at 10:00 a.m. for Final Pre−trial Conference (IN PERSON); and 10/3/06 at 9:00 a.m. for trial. All other dates and provisions in the 3/1/05 scheduling order remain unchanged. (NOTE: 6/30/06 FPT and 7/10/06 trial dates CANCELED). Court understands no further motions for extensions of time will be sought by the parties. Entered by Mag. Judge Evans on 2/23/06. (MAS, ilcd) (Entered: 02/24/2006)
18 MOTION to Dismiss by Defendant City of Springfield. Responses due by 6/26/2006 (Lang, James) (Entered: 06/12/2006)
19 MOTION for Summary Judgment by Defendant City of Springfield. Responses due by 7/3/2006 (Lang, James) (Entered: 06/12/2006)
20 MOTION for Extension of Time to File Response/Reply as to 19 MOTION for Summary Judgment by Plaintiffs Kevin Groesch, Greg Shaffer, Scott Allin. Responses due by 7/14/2006 (Baker, James) (Entered: 06/30/2006)
TEXT ORDER: The Court has received Plaintiffs' Motion for an Extension of Time (d/e 20). Plaintiffs seek until July 7, 2006, to respond to the Defendant's Motion for Summary Judgment. The Defendant has no objection to the Motion. THEREFORE, Plaintiffs' Motion is ALLOWED. Plaintiffs are granted leave to file their response up to and including July 7, 2006. Entered by Judge Jeanne E. Scott on 6/30/2006. (CT, ilcd) (Entered: 06/30/2006)
TEXT ORDER: The Court has received Defendant's Partial Motion to Dismiss (d/e 18). Pursuant to an Order entered in the United States Bankruptcy Court for the Central District of Illinois on March 15, 2006, in Case No. 05−70233, the Defendant moves to dismiss with prejudice all claims for monetary damages accruing to Plaintiff Gregory Shaffer until January 19, 2005. See Defendant's Partial Motion to Dismiss, Ex. A, U.S. Bankruptcy Court's Order on Trustee's "Motion for Authority to Settle Cause of Action". On January 19, 2005, Plaintiff Shaffer filed for bankruptcy. The March 15, 2006, Bankruptcy Order approved the sale to the City of Springfield of certain property of the bankruptcy estate consisting of claims of Shaffer for monetary damages accruing to Shaffer until the date his petition for bankruptcy was filed, arising from his employment as a police officer for the City of Springfield, as set forth in the instant case. THEREFORE, Defendant's Motion (d/e 18) is ALLOWED. All claims for monetary damages accruing to Plaintiff Shaffer before January 19, 2005, are DISMISSED with prejudice. Plaintiff Shaffer, however, remains a party to the case. Entered by Judge Jeanne E. Scott on 7/6/2006. (cc: all counsel) (MAS, ilcd) (Entered: 07/06/2006)
21 MOTION for Leave to File Excess Pages by Plaintiffs Kevin Groesch, Greg Shaffer, Scott Allin. Responses due by 7/21/2006 (Baker, James) (Entered: 07/07/2006)
TEXT ORDER: The Court has received the Plaintiffs' Motion for Leave to File in Excess of Page Limitations (d/e 21). The Plaintiffs request to file their memorandum in opposition to the Defendant's Motion for Summary Judgment in excess of the Court's page limitations. The Motion (d/e 21) is ALLOWED. Entered by Judge Jeanne E. Scott on 7/7/2006. (cc: all counse1) (MAS, ilcd) (Entered: 07/07/2006)
22 MEMORANDUM in Opposition re 19 MOTION for Summary Judgment filed by Plaintiffs Kevin Groesch, Greg Shaffer, Scott Allin. (Attachments: # 1 Appendix #

Case: 3:04-cv-3162 As of: 01/23/2015 07:48 PM CST 5 of 9

07/10/2006 07/24/2006 09/15/2006
09/18/2006 09/18/2006
10/13/2006 10/13/2006 10/18/2006 10/18/2006 12/29/2006

2 Affidavit Groesch# 3 Affidavit Allin# 4 Exhibit Harris Dep# 5 Exhibit Schluter Dep# 6 Exhibit Kliment dep# 7 Exhibit Larkin dep# 8 Exhibit McNeil dep# 9 Exhibit Exhibit 1# 10 Exhibit Exhibit 2# 11 Exhibit Exhibit 3A# 12 Exhibit Exhibit 4# 13 Exhibit Exhibit 5# 14 Exhibit Exhibit 7# 15 Exhibit Exhibit 7A# 16 Exhibit Exhibit 8# 17 Exhibit Husch &Eppenberger# 18 Exhibit Harris Dep. 00−MR−180# 19 Exhibit 00−MR−180# 20 Exhibit Groesch charge# 21 Exhibit Allin charge)(Baker, James) (Entered: 07/10/2006)
23 CERTIFICATE of Compliance. (Baker, James) (Entered: 07/10/2006)
24 REPLY to Response to Motion re 19 MOTION for Summary Judgment filed by Defendant City of Springfield. (Lang, James) (Entered: 07/24/2006)
TEXT ORDER: Due to the Court's schedule, a ruling on Defendant's Motion for Summary Judgment will not be filed before the scheduled pretrial hearing, currently set for October 2, 2006, at 10:00 a.m. The parties do not object to continuing both the pretrial hearing and trial to permit full consideration of the materials submitted on the summary judgment motion. THEREFORE, the Court hereby CANCELS the pretrial conference set for October 2, 2006, at 10:00 a.m., and trial set for October 3, 2006, at 9:00 a.m., and RESCHEDULES the pretrial conference for October 27, 2006, at 11:30 a.m., and trial for November 7, 2006, at 9:00 a.m. The Court refers the matter to Magistrate Judge Cudmore to conduct a settlement conference. Entered by Judge Jeanne E. Scott on 9/15/2006. (cc: all counsel) (MAS, ilcd) (Entered: 09/18/2006)
TEXT ORDER: Magistrate Judge Charles Evans recuses himself from this case and transfers case to Magistrate Judge Byron Cudmore for all further proceedings. Entered by Mag. Judge Evans on 9/18/06. (MAS, ilcd) (Entered: 09/18/2006)
MINUTE ENTRY for proceedings held before Magistrate Judge Byron G. Cudmore: Telephone conference held with Attorneys James Baker, James Lang, and Jennifer Johnson. By joint request, the Court schedules a mediation in chambers in Springfield, Illinois, on Friday, 10/13/2006, at 9:30 a.m. The following parties / representatives are directed to be personally present with full authority to compromise claims(s): Plaintiffs Kevin Groesch and Scott Allin to be personally present; Plaintiff Greg Shaffer to be available by telephone; Defendant to have representative present other than counsel; Defendant to make counter−proposal to Plaintiff by 9/29/2006. Confidential mediation statements to be submitted to Judge Cudmore via fax only to 217/492−4596 by 5:00 p.m. on 10/6/2006. (LB, ilcd) (Entered: 09/18/2006)
MINUTE ENTRY for proceedings held before Judge Byron G. Cudmore: Mediation held. Defendant to present settlement proposal to City Council in Executive Session 10/17/2006. All current deadlines cancelled. Status Report concerning settlement to be filed by 10/19/2006. (LB, ilcd) (Entered: 10/13/2006)
UTILITY: Set/Reset Deadlines: Status Report due by 10/19/2006. (LB, ilcd) (Entered: 10/13/2006)
25 STATUS REPORT by City of Springfield. (Lang, James) (Entered: 10/18/2006)
TEXT ORDER: The Court has received the Defendant's Settlement Report (d/e 25). The Report represents that a settlement has not been achieved in this case. The Court therefore resets the final pretrial conference for February 26, 2007, at 9:00 a.m., and the trial for March 6, 2007, at 9:00 a.m.Entered by Judge Jeanne E. Scott on 10/18/2006. (cc: all counsel)(MAS, ilcd) (Entered: 10/18/2006)
26 OPINION entered by Judge Jeanne E. Scott on 12/29/2006: Defendant's Motion for Summary Judgment (d/e 19) is ALLOWED in part and DENIED in part. Defendant is entitled to summary judgment on Plaintiff's claims for damages arising prior to the state trial court judgment on November 10, 2003. Defendant is further entitled to summary judgment on Plaintiff Shaffer's claims for monetary damages accruing prior to January 19, 2005. Summary judgment is DENIED in all other respects. The parties are directed to file any Motions in Limine by January 19, 2007. The pretrial conference remains scheduled for February 26, 2007, at 9:00 a.m. (MAS, ilcd) (Entered: 12/29/2006)

Case: 3:04-cv-3162 As of: 01/23/2015 07:48 PM CST 6 of 9

01/03/2007 01/03/2007
01/09/2007 01/16/2007 01/18/2007
01/29/2007 02/02/2007
05/31/2007
06/05/2007 06/25/2007 07/11/2007
07/11/2007

27 MOTION for Extension of Time to File Motions in Limine by Plaintiffs Kevin Groesch, Greg Shaffer, Scott Allin.Responses due by 1/17/2007 (Baker, James) (Entered: 01/03/2007)
TEXT ORDER: This matter is before the Court on Plaintiffs' Motion for an Extension of Time (d/e 27). Plaintiffs seek a brief extension of time for the submission of motions in limine. Plaintiffs' Motion for an Extension of Time (d/e 27) is ALLOWED. The parties are directed to file any motions in limine on or before February 2, 2007. The pretrial conference remains scheduled for February 26, 2007.Entered by Judge Jeanne E. Scott on 1/3/2007. (cc: all counsel)(MAS, ilcd) (Entered: 01/04/2007)
28 NOTICE of Appearance of Attorney by Frank Martinez on behalf of City of Springfield (Martinez, Frank) (Entered: 01/09/2007)
TEXT ORDER: Telephonic status conference set by Court for January 18, 2007, at 1:00 p.m. Court will initiate call. Entered by Judge Jeanne E. Scott on 1/16/07. (ME, ilcd) (Entered: 01/16/2007)
MINUTE ENTRY: Status conference held. Both parties appeared telephonically. The Plaintiffs appeared by attorney John Baker. The Defendant appeared by attorneys Frank Martinez and James Lang. The Court apprised the parties of the pending Supreme Court case, Ledbetter v. Goodyear Tire and Rubber Co. Inc., and requested their views whether the instant case should be stayed until the Supreme Court rules on the Ledbetter case. Ledbetter, 421 F.3d 1169 (11th Cir. 2005), cert. granted, 126 S.Ct. 2965 (U.S. Jan. 26, 2006) (No. 05−1074). The parties are directed to advise the Court on or before January 31, 2007. (MAS, ilcd) (Entered: 01/19/2007)
29 STATUS REPORT by City of Springfield. (Lang, James) (Entered: 01/29/2007)
TEXT ORDER: The Court has received the parties' Joint Statement In Regard to Postponement (d/e 29). The parties seek to stay the trial in this case until after the Supreme Court issues its decision in Ledbetter v. Goodyear Tire and Rubber Co., Inc., 126 S.Ct. 2965 (2006). The Court finds good cause to stay the matter pending a decision in Ledbetter. THEREFORE, this case is STAYED pending the Supreme Court's decision in Ledbetter. A further status conference is set for July 16, 2007, at 9:00 a.m.Entered by Judge Jeanne E. Scott on 2/02/2007. (cc: all counsel)(MAS, ilcd) (Entered: 02/02/2007)
TEXT ORDER: The Supreme Court has issued its decision in Ledbetter v. Goodyear Tire &Rubber Co., Inc., S.Ct., 2007 WL 1528298 (May 29, 2007). In light of Ledbetter, the Court will revisit its Opinion (d/e 26) on the Defendants Motion for Summary Judgment. If the parties wish to submit memoranda addressing the impact of Ledbetter on the present case, they are to do so by June 25, 2007. Entered by Judge Jeanne E. Scott on 5/31/2007. (cc: all counsel)(MAS, ilcd) (Entered: 05/31/2007)
30 MEMORANDUM in Support re 19 MOTION for Summary Judgment Supplemental Memorandum filed by Defendant City of Springfield. (Lang, James) (Entered: 06/05/2007)
31 MEMORANDUM in Opposition re 19 MOTION for Summary Judgment Supplemental Pursuant to May 31, 2007 Order filed by Plaintiffs Kevin Groesch, Greg Shaffer, Scott Allin. (Baker, James) (Entered: 06/25/2007)
32 OPINION entered by Judge Jeanne E. Scott on 7/11/2007. Defendant's Motion for Summary Judgment (d/e 19) is now ALLOWED as to all claims. The Court vacates the portion of the December 29, 2006, Opinion (d/e 26) that denied summary judgment and directs that judgment be entered in favor of Defendant. The Court cancels the status conference set for July 16, 2007, at 9:00 a.m. All pending motions are denied as moot. The case is closed. (MAS, ilcd) (MAS, ilcd). (Entered: 07/11/2007)
33 JUDGMENT entered in favor of the City of Springfield and against Greg Shaffer, Kevin Groesch, and Scott Allin pursuant to the Court's Opinion entered on 7/11/2007. (MAS, ilcd) (Entered: 07/11/2007)

Case: 3:04-cv-3162 As of: 01/23/2015 07:48 PM CST 7 of 9

08/10/2007 08/10/2007 08/15/2007 08/15/2007 04/23/2008 04/23/2008 10/06/2010 10/07/2010
10/08/2010 10/14/2010 12/13/2010 12/14/2010 12/16/2010 12/16/2010 12/22/2010 04/19/2011 04/19/2011
12/27/2011

34 NOTICE OF APPEAL by Kevin Groesch, Greg Shaffer, Scott Allin. (Baker, James) (Entered: 08/10/2007)
U S Court of Appeal Fees received in the amount of $ 455.00; receipt number S009159 regarding Notice of Appeal [d/e 34] filed by Kevin Groesch, Greg Shaffer and Scott Allin. (MAS, ilcd) (Entered: 08/10/2007)
35 Short Record of Appeal Sent to U S Court of Appeals regarding [d/e 34] Notice of Appeal (MAS, ilcd) (Entered: 08/15/2007)
36 NOTICE of Docketing Record on Appeal from U S Court of Appeals regarding Notice of Appeal [d/e 34] filed by Kevin Groesch, Greg Shaffer, and Scott Allin. U S Court of Appeals Case Number is 07−2932 (MAS, ilcd) (Entered: 08/23/2007)
37 MOTION to Withdraw as Attorney by Defendant City of Springfield. Responses due by 5/12/2008 (Lang, James) (Entered: 04/23/2008)
TEXT ORDER by Magistrate Judge Byron Cudmore: Motion to Withdraw as Attorney of Record 37 ALLOWED. Attorney James A Lang terminated as counsel in this cause. (LB, ilcd) (Entered: 04/23/2008)
38 MOTION to Withdraw Record on Appeal by Defendant City of Springfield. Responses due by 10/25/2010 (Martinez, Frank) (Entered: 10/06/2010)
TEXT ORDER entered by Chief Judge Michael P. McCuskey on 8/12/10. This case is reassigned to Chief Judge Michael P. McCuskey for further proceedings as the Chief Judge deems appropriate in the proper administration of justice. The case will remain a Springfield Division case, and the referral Magistrate Judge shall remain the same.(MC, ilcd) (Entered: 10/07/2010)
TEXT ORDER: Defendant City of Springfield's Motion to Withdraw the Record on Appeal (d/e 38) is ALLOWED. Entered by Chief Judge Michael P. McCuskey on 10/8/2010. (MAS, ilcd) (Entered: 10/08/2010)
39 Letter acknowledging receipt of the Appeal Record by M Carlisle for attorney Frank Martinez. (MAS, ilcd) (Entered: 10/15/2010)
40 NOTICE OF ORAL ARGUMENT by U S Court of Appeals re 34 Notice of Appeal. Argument set for Friday, 1/14/2011 at 9:30 a.m. (MAS, ilcd) (Entered: 12/13/2010)
41 Request from U S Court of Appeals for Long Record regarding d/e 34 Notice of Appeal. (MAS, ilcd) (Entered: 12/14/2010)
Certified and Transmitted Record on Appeal to U S Court of Appeals regarding d/e 34 Notice of Appeal (MAS, ilcd) (Entered: 12/16/2010)
42 Letter of Transmittal to U S Court of Appeals regarding d/e 34 Notice of Appeal. Appeal Record sent on a CD consisting of 6 Volumes of Pleadings via UPS, tracking # 1Z 647 649 03 1005 236 4. (MAS, ilcd) (Entered: 12/16/2010)
Letter of Transmittal from U S Court of Appeals regarding d/e 34 Notice of Appeal. U S Court of Appeals acknowledged receipt of the Appeal Record consisting of 6 volumes of pleadings. (MAS, ilcd) (Entered: 12/23/2010)
43 NOTICE OF ISSUANCE OF MANDATE by U S Court of Appeals. (MAS, ilcd) (Entered: 04/19/2011)
44 MANDATE of U S Court of Appeals as to d/e 34 Notice of Appeal filed by Kevin Groesch, Greg Shaffer and Scott Allin. The judgment of the District Court is AFFIRMED IN PART, with respect to the dismissal of all claims arising before November 10, 2003 and with respect to Officer Shaffer's claims for monetary damages before January 19, 2005. In all other respects the judgment is REVERSED and the case is REMANDED for proceedings consistent with this opinion. (Attachment: # 1 Judgment)(MAS, ilcd) (Entered: 04/19/2011)
TEXT ORDER entered by Chief Judge Michael P. McCuskey on 12/27/2011. This case is reassigned to Judge Sue E. Myerscough for further proceedings. (MB, ilcd) (Entered: 12/27/2011)

Case: 3:04-cv-3162 As of: 01/23/2015 07:48 PM CST 8 of 9

12/27/2011 01/30/2012
02/10/2012 02/14/2012 03/05/2012 03/06/2012
05/21/2012 05/22/2012
05/30/2012 05/30/2012 06/06/2012
07/03/2012 09/04/2012 09/05/2012

TEXT ORDER: On the Court's own motion, this matter is set for a status hearing on January 30, 2012 at 3:30 p.m. in Courtroom 1 in Springfield before Judge Sue E. Myerscough. Entered by Judge Sue E. Myerscough on 12/27/2011. (DM, ilcd) (Entered: 12/27/2011)
Minute Entry for proceedings held before Judge Sue E. Myerscough: STATUS CONFERENCE. Plaintiffs represented by Attorney James Baker. Defendant represented by Attoreney Mark Cullen. Discussion held regarding trial date, mediation and/or settlement. Parties are to advise Court by 2/10/2012 if they are interested in mediation. Hearing adjourned. (Court Reporter KS.) (CT, ilcd) (Entered: 01/31/2012)
45 STATUS REPORT by City of Springfield. (DM, ilcd) (Entered: 02/13/2012)
TEXT ORDER: At the request of the parties (see d/e 45), the deadline by which the parties shall advise the Court if they are interested in mediation is extended to March 2, 2012. Entered by Judge Sue E. Myerscough on 02/14/2012. (DM, ilcd) (Entered: 02/14/2012)
46 STATUS REPORT by Scott Allin, Kevin Groesch, Greg Shaffer. (Baker, James) (Entered: 03/05/2012)
TEXT ORDER: Because the parties have not advised the Court that they are interested in mediation, this matter is set for a final pretrial conference on June 4, 2012 at 3:00 p.m. and set for jury trial on July 3, 2012 at 9:00 a.m. The parties are advised to read the General Rules for Conduct of Counsel in the Courtroom and During Trial in Proceedings before U.S. District Judge Sue Myerscough, available at the Court's website: www.ilcd.uscourts.gov. Entered by Judge Sue E. Myerscough on 03/06/2012. (DM, ilcd) (Entered: 03/06/2012)
47 MOTION to Continue (Reschedule) the Final Pretrial Conference by Plaintiffs Scott Allin, Kevin Groesch, Greg Shaffer. Responses due by 6/7/2012 (Baker, James) (Entered: 05/21/2012)
TEXT ORDER: Plaintiffs' Motion Requesting the Final Pretrial Conference Be Rescheduled 47 is GRANTED. The final pretrial conference set for June 4, 2012 at 3:00 p.m. is VACATED and RESET for June 18, 2012 at 10:30 a.m. The case remains set on the July trial calendar. Entered by Judge Sue E. Myerscough on 05/22/2012. (DM, ilcd) (Entered: 05/22/2012)
48 NOTICE of Appearance of Attorney by Geannette S Wittendorf on behalf of City of Springfield (Wittendorf, Geannette) (Entered: 05/30/2012)
49 MOTION to Continue the Pre−Trial Conference Date and Trial Date by Defendant City of Springfield. Responses due by 6/18/2012 (Wittendorf, Geannette) (Entered: 05/30/2012)
MINUTE ENTRY: Hearing held June 6, 2012 before Judge Sue E. Myerscough by telephone conference in chambers. James Baker present on behalf of Plaintiff. Geannette Wittendorf present on behalf of Defendant. Counsel advised the Court that the parties are discussing settlement and request a continuance of the pretrial and trial settings. The pretrial conference set for June 18, 2012 at 10:30 a.m. and the jury trial set for July 3, 2012 are VACATED. The parties are DIRECTED to file a status report on or before July 9, 2012. Defendant's Motion to Continue 49 is DENIED AS MOOT. (No Court Reporter present; Proceeding not Recorded). (DM, ilcd) (Entered: 06/07/2012)
50 STATUS REPORT by City of Springfield. (Wittendorf, Geannette) (Entered: 07/03/2012)
TEXT ORDER: The parties are DIRECTED to file a status report on or before September 10, 2012. Entered by Judge Sue E. Myerscough on 9/4/2012. (MJ, ilcd) (Entered: 09/04/2012)
51 STATUS REPORT by City of Springfield. (Wittendorf, Geannette) (Entered: 09/05/2012)

Case: 3:04-cv-3162 As of: 01/23/2015 07:48 PM CST 9 of 9

10/16/2012 10/16/2012

52 STIPULATION of Dismissal by City of Springfield. (Wittendorf, Geannette) (Entered: 10/16/2012)
53 ORDER DISMISSING CASE with prejudice. Each party to bear its own cost. Entered by Judge Sue E. Myerscough on 10/16/2012. (DM, ilcd) (Entered: 10/16/2012)

 
 635 F.3d 1020 (2011)
Kevin GROESCH, Greg Shaffer, and Scott Allin, Plaintiffs-Appellants, v.
CITY OF SPRINGFIELD, ILLINOIS, Defendant-Appellee.
No. 07-2932.
United States Court of Appeals, Seventh Circuit.
Argued January 14, 2011. Decided March 28, 2011.
1021 *1021 James P. Baker (argued), Attorney, Baker, Baker & Krajewski, Springfield, IL, for Plaintiffs-Appellants.
1022 *1022 Frank Martinez (argued), Attorney, Office of the Corporation Counsel, Springfield, IL, for DefendantAppellee.
Before BAUER, WOOD, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge.
The district court in this race discrimination case properly granted summary judgment for the defendant employer based on law applicable at the time. In this appeal, however, we rely on the retroactive effect of the Lilly Ledbetter Fair Pay Act of 2009 to reverse summary judgment in part and allow appellants to pursue their claims of race discrimination under Title VII of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment.
I. Factual and Procedural Background
We review a district court's grant of summary judgment de novo. Antonetti v. Abbott Laboratories, 563 F.3d 587, 591 (7th Cir.2009). "We view the record in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor." Id., quoting Darst v. Interstate Brands Corp., 512 F.3d 903, 907 (7th Cir.2008).
A. The Plaintiff Officers
All three plaintiff-appellants0907Kevin Groesch, Greg Shaffer, and Scott Allin 0907 are white officers who were in good standing with the City of Springfield police department when they voluntarily resigned. At the times of their resignations, officers seeking reemployment were required to go through the hiring process for new police officers. Following successful completion of the process, officers were placed on an eligibility roster to await vacancies in the police department, and hired based on their rank on the roster. Rehired officers were required to reenter the force as entry-level officers in terms of pay, benefits, and seniority.
All of the appellants were subject to these regulations. Kevin Groesch was a police officer with the department for seven and a half years before resigning in 1988. When he later inquired about returning to the department, he was told he would have to go through the hiring process for new officers because his sixty day leave of absence had expired. After reapplying to the police department and awaiting reemployment from 1989 through 1996, Groesch was rehired by the department as an entry-level patrol officer in 1996. When Greg Shaffer resigned from the police department in 1987, he had worked there for seven years. He went through the rehiring process and returned to the department in 1993 as an entry-level officer, with no credit for his earlier years of service. Scott Allin resigned in 1986 after six years of service with the department. After six months away, he attempted to rejoin but was told he needed to reapply. Allin was eventually selected from the eligibility roster in 1989 and returned to work with no credit for his earlier years of service.

B. The "Schluter Ordinance" and State Court Litigation
The three appellants base their race discrimination claim on the different treatment of Officer Donald Schluter, an African-American officer who voluntarily resigned in November 1999 after five years with the department. When Schluter sought to return after a brief absence, he was not required to start over. The chief of police spoke with a city alderman, and on March 28, 2000, the Springfield City Council enacted the "Schluter Ordinance," which specifically granted Officer Schluter a retroactive leave of absence to allow him to return with credit for his years 1023 of service *1023 as an officer. The "whereas" clauses in the Schluter Ordinance listed a variety of reasons for the ordinance, including an interest in diversity in police ranks. After the ordinance was enacted, Officer Schluter returned to his position as a police officer without going through the formal hiring process, and he was hired at the same rate of pay he was earning when he resigned.[1]
After the Schluter Ordinance was enacted, the local police union brought a lawsuit in state court against the City and Officer Schluter claiming it was unconstitutional, unreasonable, discriminatory, and an abuse of discretion. The state trial court found in favor of the union, and for a time the ordinance was invalidated. On appeal, however, the Illinois Appellate Court reversed and reinstated the ordinance, concluding that the union lacked standing.
The appellants then wrote to the chief of police requesting that the City give them equal treatment and credit them with their earlier years of service to the department, but their request was ignored. On April 3, 2003, the appellants filed a new state court lawsuit claiming disparate treatment under the equal protection clause in Article 1, Section 2 of the Illinois Constitution. The state court action was dismissed on statute of limitations grounds in a judgment entered on November 10, 2003, and that decision was affirmed by the Illinois Appellate Court on July 22, 2004.
C. District Court Proceedings
The appellants then filed this lawsuit in federal district court on July 27, 2004. In an order dated February 1, 2005, the district court denied the City's motion to dismiss. The court relied in part on the "paycheck accrual" rule for determining timeliness of claims in pay discrimination. See Hildebrandt v. Illinois Dept. of Natural Resources, 347 F.3d 1014 (7th Cir. 2003); Reese v. Ice Cream Specialties, Inc., 347 F.3d 1007 (7th Cir.2003). The district court concluded that each paycheck from the police department amounted to a separate and distinct discriminatory act from which the officers could bring separate claims. On December 29, 2006, the district court denied the City's motion for summary judgment as to the appellants' claims arising out of paychecks received after the earlier state court decision. The City's motion was granted with respect to claims arising prior to the state court decision of November 10, 2003, which the district court determined were barred by the doctrine of res judicata, or claim preclusion. The district court also dismissed with prejudice Officer Shaffer's claim for monetary damages accruing prior to January 19, 2005, the date on which he had filed for bankruptcy protection.
On May 29, 2007, however, the Supreme Court decided Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 127 S.Ct. 2162, 167 L.Ed.2d 982 (2007), which rejected the paycheck accrual rule and found that the plaintiff's claims of sex discrimination in pay were time-barred. In an order dated July 11, 2007, the district court granted the City's motion for summary judgment as to all remaining claims based on Ledbetter's rejection of the paycheck accrual rule. As the district court had concluded in its earlier opinion, the original adverse discrimination decision was in December 2002, when the appellants were denied the same treatment that Officer Schluter received. 1024 Under Ledbetter, the appellants *1024 needed to file their discrimination charge with the Equal Employment Opportunity Commission (EEOC) within 300 days from that decision.[2] The district court found that the appellants' Title VII claims were untimely because they did not file with the EEOC until March 2, 2004. The district court also concluded that while the appellants filed their Section 1983 claims in a timely manner, during the applicable two-year statute of limitations period, the Section 1983 claims were barred by res judicata because they arose from the same set of operative facts as the state court action and could have been brought as part of that earlier lawsuit. While this appeal was pending, Congress enacted the Lilly Ledbetter Fair Pay Act in 2009.

II. The Ledbetter Decision and the Lilly Ledbetter Fair Pay Act of 2009
The appellants argue that the Ledbetter Act requires that the judgment of the district court be reversed and that, because of the Ledbetter Act, the officers' Title VII and equal protection claims are not barred as untimely. We agree, except with respect to the appellants' claims for acts of discrimination before the state court judgment was entered on November 10, 2003, which we conclude are still barred by res judicata.
A. The Title VII Claims
The district court properly applied the Supreme Court's decision in Ledbetter to grant summary judgment for the City on appellants' Title VII claims. The facts of Ledbetter are now well known. Plaintiff Lilly Ledbetter claimed sex discrimination in pay in violation of Title VII and the Equal Pay Act of 1963, 29 U.S.C. § 206(d). She asserted that she had received negative performance evaluations because of her sex and that her pay continued to be affected by those past performance reviews. See Ledbetter, 550 U.S. at 622, 127 S.Ct. 2162. Because each of the relevant evaluations occurred much more than 180 days before Ms. Ledbetter filed her EEOC charge, she relied on the paycheck accrual rule to show that her claims were timely. She argued that each time she was paid less than her similarly situated male colleagues as a result of the discriminatory evaluations, the payment was a separate and discrete wrong that triggered a new Title VII limitations period. Id. at 625, 127 S.Ct. 2162. The Supreme Court rejected this argument and the paycheck accrual rule, holding that Ms. Ledbetter could not sue based solely on the present effects of a past discriminatory pay-setting decision that occurred outside of the limitations period. Id. at 621, 127 S.Ct. 2162.
Like Ms. Ledbetter, the appellants relied on the paycheck accrual rule to bring their claims. They argued that each time they received a paycheck, they received less than they would have received if they had been treated like Officer Schluter, the returning African-American police officer. Following Ledbetter, the district court had no choice but to dismiss the appellants' Title VII claims.
Congress responded to the Ledbetter decision by enacting the Lilly Ledbetter Fair Pay Act of 2009, while this appeal was pending. The Act amends Title VII of the Civil Rights Act of 1964 by providing that the statute of limitations for filing an EEOC charge alleging pay discrimination resets with each paycheck affected by a discriminatory decision. More specifically, the Act provides that an "unlawful employment practice" occurs in the 1025 following situations: *1025 (1) "when a discriminatory compensation decision or other practice is adopted," (2) "when an individual becomes subject to a discriminatory compensation decision or other practice," and (3) "when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice." 42 U.S.C. § 2000e-5(e)(3)(A).
Congress took the unusual step of expressly providing that the Ledbetter Act applies retroactively to all claims pending on May 28, 2007 or later. Pub.L. 111-2, § 6. The appellants' Title VII claims are covered by the Ledbetter Act because they allege "discriminatory compensation decisions" and are based on the payment of wages resulting from those decisions.
The City has not offered any persuasive basis for avoiding application of the Lilly Ledbetter Fair Pay Act. First, the City argues that each paycheck the officers receive is determined by a "seniority pay system" and that a seniority pay system is a not a "discriminatory compensation decision or other practice" as contemplated by the Ledbetter Act. The problem is that the officers do not contend that the seniority pay system is inherently discriminatory, nor do they need to do so to satisfy the Ledbetter Act's requirements. A facially neutral compensation system may still be applied in a discriminatory manner. That is why the Ledbetter Act requires only "a discriminatory compensation decision or other practice," not an intrinsically discriminatory compensation system. It is enough to allege, as the officers do, that the City's decisions as to who received prior service credit within the existing seniority system were motivated by race. The City's seniority argument fails to come to grips with the fact that it changed the seniority system for Officer Schluter, and only for him. The City's "neutral seniority system" argument attempts to sidestep both the language of the Act and the heart of the matter alleged

by the appellants0907that the City refused to recognize the white officers' prior service under the seniority system while doing so for a black officer.
The City also relies on the first Supreme Court case to address the Ledbetter Act, AT & T Corp. v. Hulteen, ___ U.S. ___, 129 S.Ct. 1962, 173 L.Ed.2d 898 (2009). Hulteen was a pregnancy discrimination case in which the plaintiffs challenged the calculation of their pension benefits based on differential treatment of pregnancy leaves taken decades earlier, before enactment of the Pregnancy Discrimination Act. The Supreme Court held that the Title VII protection of seniority systems insulated the defendants from liability based on retroactive application of the Pregnancy Discrimination Act. See 42 U.S.C. § 2000e-2(h). The Supreme Court also rejected an argument based on the Ledbetter Act, concluding that the defendants' treatment of pregnancy leave had not been unlawful at the time and that the defendants could apply their lawful seniority system. 129 S.Ct. at 1973. Hulteen does not help the City because the issue here is not a previously lawful seniority system but only the timeliness of claims based on an allegedly discriminatory decision to treat officers differently based on their race. As the district court concluded in its December 9, 2006 order, the appellants have offered a prima facie case that they were subjected to a discriminatory compensation decision. This is precisely the kind of decision covered by the Ledbetter Act.
Finally, the City seems to argue that this case can be distinguished from Ledbetter based on a supposed 1026 difference between race discrimination and sex discrimination, *1026 or the factual differences between
discriminatory performance evaluations and the policy choice reflected in the Schluter Ordinance. These arguments miss the point of both the Supreme Court's broad rejection of the paycheck accrual rule in Ledbetter and the even broader legislative response in the Ledbetter Act. The district court's grant of summary judgment on the Title VII claims after November 10, 2003 must be reversed.[3]
B. The Equal Protection Claims under Section 1983
The appellants' race discrimination claims under the Equal Protection Clause of the Fourteenth Amendment, brought under 42 U.S.C. § 1983, present some additional legal wrinkles. They filed those claims within the applicable two-year limit measured from the denial of their request for the same treatment that Officer Schluter received. But their equal protection claims were dismissed on res judicata grounds. In the absence of the paycheck accrual rule, the appellants each had only one discrimination cause of action that should have been asserted in their earlier and unsuccessful state court action.
Appellants argue, and we agree, that in the wake of the Ledbetter Act, they should be able to rely on the paycheck accrual rule to pursue their equal protection claims that arose after dismissal of the state court action. The paycheck accrual rule avoids the problem of res judicata because each paycheck reflecting the allegedly discriminatory decision gives rise to a distinct cause of action. We conclude that there is no principled reason for applying the paycheck accrual theory to claims arising under Title VII but not to those arising under 42 U.S.C. § 1983. As the district court concluded in denying the City's motion to dismiss pre-Ledbetter, Hildebrandt and Reese, our cases applying the paycheck accrual rule in the Title VII context, extend logically to equal protection claims arising under Section 1983. If it was not already clear that Hildebrandt extended the paycheck accrual rule to pay discrimination claims under Section 1983, we hold here that paychecks reflecting a past discriminatory compensation practice create fresh causes of action under Section 1983, just as they do under Title VII after the Ledbetter Act.
The Supreme Court articulated what became known as the "paycheck accrual rule" in Bazemore v. Friday, 478 U.S. 385, 106 S.Ct. 3000, 92 L.Ed.2d 315 (1986), a case concerning the continued application of a racially discriminatory pay regime originally implemented prior to Title VII's enactment. The Bazemore Court concluded: "Each week's paycheck that delivers less to a black than to a similarly situated white is a wrong actionable under Title VII." Id. at 395, 106 S.Ct. 3000 (in a concurrence by Justice Brennan, joined by all other Members of the Court). Initially, this circuit struggled to reconcile Bazemore with earlier Supreme Court cases emphasizing the 1027 difference between a discrete act and its later harmful effects. See, e.g., Webb v. Indiana National Bank, *1027 931 F.2d 434, 437-38 (7th Cir.1991) (noting the difficulty in reconciling Bazemore with earlier decisions like Delaware State College v. Ricks). Early on, this circuit and others understood paycheck discrimination claims like those in Bazemore as an outgrowth of the "continuing violation" doctrine. See Hildebrandt, 347 F.3d at 1025-26

(discussing Bazemore and its progeny), citing Cardenas v. Massey, 269 F.3d 251, 257 (3d Cir.2001). We observed that, "Drawing the line between something that amounts to a `fresh act' each day and something that is merely a lingering effect of an earlier, distinct, violation is not always easy." Hildebrandt, 347 F.3d at 1026, quoting Pitts v. City of Kankakee, 267 F.3d 592, 595 (7th Cir.2001).
In 2002, the Supreme Court decided National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002), which distinguished paycheck discrimination from the continuing violation theory and helped clarify our own treatment of the paycheck accrual rule articulated in Bazemore. "In Morgan, the Supreme Court expressly relied on its statement in Bazemore regarding each paycheck paid at a discriminatory rate as an example of an actionable discrete act or single occurrence, even when it has a connection to other acts." Hildebrandt, 347 F.3d at 1027, citing Morgan, 536 U.S. at 111, 122 S.Ct. 2061 (internal quotation marks omitted). Morgan held that "discrete, discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Morgan, 536 U.S. at 113, 122 S.Ct. 2061. The Court found that, "Each discrete discriminatory act starts a new clock for filing charges alleging that act. The charge, therefore, must be filed within the 180- or 300-day time period after the discrete discriminatory act occurred." Id.
Following Morgan, Hildebrandt and Reese firmly established in our circuit that under Title VII, a new cause of action for pay discrimination arose every time a plaintiff received a paycheck resulting from an earlier discriminatory compensation practice occurring outside the statute of limitations period. See Reese, 347 F.3d at 1013-14, citing Hildebrandt, 347 F.3d at 1028. While we stated no clear holding in Hildebrandt that the paycheck accrual rule extended to pay discrimination claims under Section 1983, we concluded that the Supreme Court's decision in Morgan, while focused on the timeliness of Title VII claims, also applied to Section 1983 claims: "The Supreme Court's ruling in [Morgan], although discussing the continuing violation doctrine in the Title VII context, applies equally to § 1983 cases." Hildebrandt, 347 F.3d at 1036 n. 18. Other circuits have reached similar conclusions. See, e.g., Sharpe v. Cureton, 319 F.3d 259, 267 (6th Cir.2003) ("We can find no principled basis upon which to restrict Morgan to Title VII claims, and we therefore conclude that the Supreme Court's reasoning must be applied to the ... § 1983 claims."); RK Ventures, Inc. v. City of Seattle, 307 F.3d 1045, 1061 (9th Cir.2002) (applying Morgan to Section 1983 claims). We see no reason0907and the City offers no reason 0907why we would treat a paycheck as a "discrete discriminatory act" that triggers a new limitations period under Title VII but not under Section 1983 for the purpose of pay discrimination claims.
The district court found that the appellants had filed timely Section 1983 claims, within the applicable two-year statute of limitations, but that, under Ledbetter, the equal protection claims were barred by res judicata because they could have been brought within the state court action. In fact, the Ledbetter decision focused specifically on 1028 Ms. Ledbetter's Title VII claims and did not specify the applicability of its *1028 holding to constitutional claims under Section 1983. But if Ledbetter was understood to extend logically to Section 1983 claims, as, for example, we had earlier understood Morgan's Title VII reasoning to extend to Section 1983 claims, see, e.g., Evans v. City of Chicago, 2007 WL 4219415, at *2 (N.D.Ill. Nov. 29, 2007) (applying Ledbetter to plaintiff's § 1983 claims), then we see no reason that the Ledbetter Act would not now restore our pre-Ledbetter precedent and allow us to extend the paycheck accrual rule to Section 1983 claims. See, e.g., Shockley v. Minner, 2009 WL 866792, at *1 (D.Del. Mar. 31, 2009) (With the Ledbetter Act, "Congress has explicitly overruled the decision and logic of the Ledbetter decision and thereby overruled the Evans [v. City of Chicago] [Section 1983] decision.").
Ledbetter and the Ledbetter Act leave some room for confusion as to the scope of the paycheck accrual rule. The Ledbetter decision explicitly applied only to Title VII claims, though its reasoning clearly would have extended to disparate pay claims under other employment discrimination statutes. The Ledbetter Act applies explicitly to claims under Title VII, but also to claims under the Americans with Disabilities Act, the Rehabilitation Act, and the Age Discrimination in Employment Act, none of which were specifically addressed by the Ledbetter Court. See Pub.L. No. 111-2. Neither the Ledbetter decision nor the Ledbetter Act addresses constitutional claims asserted under Section 1983.[4] In the absence of any clearer directive, we believe the best course is to treat the Ledbetter Act as removing the Ledbetter decision as an obstacle to following our earlier precedents, which recognized the paycheck accrual rule for all allegations of unlawful discrimination in employee compensation. We hold that the paycheck accrual rule applies to pay discrimination claims under Section 1983.

In a separate argument aimed at the equal protection claims, the City argues, contrary to the district court's ruling, that the act of alleged discrimination occurred not when the white officers asked the chief of police for equal treatment but on March 29, 2000, when the City passed the Schluter Ordinance. On this theory, the City argues that the two-year statute of limitations period for appellants' equal protection claims expired on March 29, 2002. The City argues that the Ledbetter Act "does not save otherwise untimely claims outside the discriminatory 1029 compensation context," quoting Richards v. Johnson & *1029 Johnson, Inc., 2009 WL 1562952, at *9 (D.N.J. Jun. 2, 2009), and is thus not applicable to the appellants' claims. This argument fails for three reasons. First, the language quoted from the Richards case does not apply because appellants' claims, unlike the claims in Richards, are claims for discriminatory compensation. Second, the discriminatory compensation decision actually alleged by the appellants and addressed by the district court was not the passage of the Schluter Ordinance. The white officers do not object to the City's treatment of Officer Schluter; they just want what they say would be the same treatment. The allegedly discriminatory decision therefore was the implicit denial of the appellants' December 11, 2002 request for the same prior service credit that was given to Schluter. See, e.g., Mikula v. Allegheny County, 583 F.3d 181, 186 (3d Cir.2009) (finding that the failure of an employer to respond to a request for a raise qualified as a "compensation decision" within the meaning of the Ledbetter Act "because the result is the same as if the request had been explicitly denied"). Third, even if the City were correct on these points, the argument that the statute of limitations has run on the original compensation decision assumes rather than proves the inapplicability of the paycheck accrual rule. The relevance of the argument depends on whether or not the paycheck accrual rule applies0907the City obviously assumes it does not. Because the rule applies for the reasons we have explained, a new statute of limitations period began to run with each paycheck. The district court's grant of summary judgment on the Section 1983 claims after November 10, 2003 is reversed.
III. Preclusive Effect of State Court Decision
Finally, we consider whether the earlier state court litigation precludes further litigation of appellants' claims even if they get the benefit of the paycheck accrual rule. "The doctrine of [res judicata or] claim preclusion is premised on the idea that, when a claim has been fully litigated and come to judgment on the merits, finality trumps." Czarniecki v. City of Chicago, 633 F.3d 545, 548 (7th Cir.2011). Because the earlier suit in this case was a state court judgment, we look to Illinois law to determine whether res judicata bars the appellants' claims. Walsh Const. Co. of Illinois v. Nat'l Union Fire Ins. Co. of Pittsburgh, Pennsylvania, 153 F.3d 830, 832 (7th Cir.1998). In Illinois, res judicata applies when: (1) there is a final judgment in the first suit; (2) there is identity of the causes of action (identified by a set of "operative facts"); and (3) there is an identity of parties (directly or through privity of interest). Id.; Czarniecki, 633 F.3d at 548-49. The district court properly decided that res judicata barred recovery for claims arising before the date of the final judgment in the state court suit 0907November 10, 2003. If the appellants had been successful in the state court case, they could have recovered for damages up until November 10, 2003.
The City argues that the appellants' later claims are also barred by res judicata even if the paycheck accrual rule applies. We disagree. As discussed above, following the Ledbetter Act, we recognize that each paycheck resulting from the original discriminatory act is a separate cause of action triggering its own statute of limitations. As the district court found, these independent causes of action do not share an "identity of cause of action" with the state court action. They are allegedly "wrongful events ... separated by time and function" from the allegedly discriminatory paychecks paid to the appellants before the state court case was decided. Perkins v. Board of 1030 Trustees of University *1030 of Illinois, 116 F.3d 235, 237 (7th Cir. 1997).
We should not be understood as opening the door to endless re-litigation of allegedly discriminatory decisions that affect compensation for many years. A critical point here is that the state court did not rule on the merits of the discrimination issue, but ruled only on statute of limitations grounds. Therefore, there is no collateral estoppel or issue preclusion problem that would prevent these plaintiffs from receiving a first decision on the merits of their discrimination claims. See id. (holding that the university's prevailing in the first case on statute of limitations grounds did not mean that there was issue preclusion or collateral estoppel as to the plaintiff's later claims of new discrimination). The appellants may thus proceed with their discrimination claims for allegedly discriminatory compensation paid after November 10, 2003.

The appellants argue that the state court decision should have no preclusive effect at all on their Title VII claims because they had not yet received their EEOC "right-to-sue" letter, so the Title VII claim could not have been brought in their earlier state court suit. We rejected essentially the same argument in Brzostowski v. Laidlaw Waste Sys., Inc., 49 F.3d 337, 339 (7th Cir.1995) (finding that plaintiff "could have delayed the filing of his first suit or requested that the court postpone or stay the first case. What he cannot do, as he did here, is split causes of action and use different theories of recovery as separate bases for multiple suits."); see also Huon v. Johnson & Bell, Ltd., 2010 WL 3404967, at *3 (N.D.Ill. Aug. 26, 2010) ("the Seventh Circuit has addressed that precise issue and held that a plaintiff cannot rely upon the fact that he has not yet received a right-to-sue letter from the EEOC to escape the effects of res judicata"). The appellants' argument that they could not bring their Title VII claims in state court is meritless, and the state court decision must be given preclusive effect for the appellants' claims before November 10, 2003.
The judgment of the district court is AFFIRMED IN PART, with respect to the dismissal of all claims arising before November 10, 2003 and with respect to Officer Shaffer's claims for monetary damages before January 19, 2005. In all other respects the judgment is REVERSED and the case is REMANDED for proceedings consistent with this opinion.
[1] This opinion should not be interpreted as expressing any view on the ultimate merits of appellants' race discrimination claims, including possible justifications for the Schluter Ordinance or differences between his situation and appellants' resignations and returns. We address only the statute of limitations and res judicata issues actually before us.
[2] Title VII claims must be filed within 180 or 300 days after the allegedly discriminatory act, depending on the state. In Illinois, the charging period is 300 days. See Hall v. Bodine Elec. Co., 276 F.3d 345, 352-53 (7th Cir.2002); 42 U.S.C. § 2000e-5(e)(1).
[3] The City's reliance on Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980) (where plaintiff failed to file a timely charge after denial of tenure), and United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977) ("[a] discriminatory act which is not made the basis for a timely charge ... is merely an unfortunate event in history which has no present legal consequences"), to argue that the paycheck accrual rule should not apply, is not at all convincing in light of the Ledbetter Act. Furthermore, these cases were decided well before Hildebrandt and Reese, where we held that the paycheck accrual rule applied to pay discrimination cases under Title VII.
[4] District courts have just begun to grapple with how broadly the Ledbetter Act should be construed. See, e.g., Aspilaire v. Wyeth Pharmaceuticals, Inc., 612 F.Supp.2d 289, 303 n. 6 (S.D.N.Y.2009) (acknowledging, but declining to resolve, the fact that "[t]he Act does not, by its terms, apply to cases brought under § 1981 ... However, Title VII, to which the Act does expressly apply, and § 1981 cases are frequently analyzed under the same framework ... Undoubtedly, answers to these questions will soon emerge."). Answers are emerging, and district courts are coming to different conclusions. Compare Russell v. County of Nassau, where the court concluded that claims for salary discrimination under Title VI or Sections 1981, 1983, or 1985 are governed by the Supreme Court's analysis in Ledbetter. 696 F.Supp.2d 213, 230 (E.D.N.Y. 2010), citing Pub.L. No. 111-2 ("[A]lthough, in addition to Title VII, the Ledbetter Act amended the Americans with Disabilities Act, the Rehabilitation Act, and the Age Discrimination in Employment Act, it did not amend Title VI, § 1981, § 1983 or § 1985."), with Klebe v. University of Texas System, 649 F.Supp.2d 568 (W.D.Tex.2009) (holding that the Ledbetter Act applies to reinstate employees' pay discrimination claims under Texas Commission on Human Rights Act), and Schengrund v. Pennsylvania State University, 705 F.Supp.2d 425 (M.D.Pa.2009) (declining to apply the reasoning of Ledbetter to pay discrimination claims under the Pennsylvania Human Relations Act when it no longer applies to Title VII claims).
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