U.S. 867 (1984). The verdict in the Barner action was limited to
“a finding of no pattern or practice of discrimination.” Barner
(May 13, 2002) (order clarifying meaning of judgment). Judge
Guzman expressly stated that the verdict constitutes “a rejection
of the claim of class wide discrimination but does not extinguish
the individual claims of discrimination asserted either by the
named parties or the unnamed class members.” Id (citing Cooper).
I agree with Judge Guzman’s reading of Cooper and his assessment of
the preclusive effect of the Barner action verdict. Plaintiffs’
claims here are not barred by res judicata.

With respect to collateral estoppel, the issue of whether
defendants engaged in a pattern or practice of discrimination was
decided in the Barner action, and if plaintiffs sought to
relitigate that issue here, those claims would be precluded.
Cooper, 467 U.S. at 880. Plaintiffs say, however, that they are
not pursuing pattern or practice claims here. (Pl.’s Resp. to
Def.’s Mot. to Dismiss at 11). Defendants also argue that Judge
Guzman’s finding that “defendants have established a legitimate
nondiscriminatory reason for the actions” with respect to disparate
impact claims in the Barner action are preclusive on the issue of
pretext. Barner (May 22, 2002) (order entering judgment for
defendants as to disparate impact claim). That finding, however,
was limited to the practice of terminating employees based solely

on job title (as opposed to qualifications of employee), which


class action was proceeding on their behalf. The limitations
periods for plaintiffs’ individual discrimination claims were
tolled during the pendency of the class action.’
2. EEOC Filing Requirements

Even though the statutes of limitations on the claims in the
present suit had not run, plaintiffs still must comply with Title
VII’s EEOC filing requirement, at least with respect to their Title
VII count. Plaintiffs here do not allege that any of them filed a
complaint with the EEOC. Instead, they invoke the single-filing
rule to piggyback on the timely-filed EEOC charges of the named
plaintiffs in the Barner action. The single-filing rule excuses,
in certain circumstances, plaintiffs in a Title VII case from the
procedural requirements of filing a charge with the EEOC and
receiving a right to sue letter before commencing a civil suit.
Zuckerstein v. Argonne Nat’l Lab., 663 F. Supp. 569, 572 (N.D. Ill.
1987) (Moran, J.). There is little discussion in the Seventh
Circuit of the single-filing rule, while other circuits have

explored the issue more fully. See id. at 573 (“[T]he clear trend

2 In addition to the Third Circuit’s opinion in Edwards, at

least one treatise indicates that the tolling rule of Crown, Cork
& Seal applies to the Cooper situation in which individual
discrimination claims survive an adverse class ruling on pattern or
practice. Charles A. Sullivan et al., Employment Discrimination
§ 32.4 (2d ed. 1988) (“While Cooper demonstrates that a class
action may narrow individual rights, it is also possible for the
mere existence of a class action to expand such rights because the
individual plaintiff may rely on a pending class action to toll the
applicable limitations period. The Supreme Court recognized this
in Crown, Cork and Seal Co. v. Parker.”).

9


affiliation in violation of § 1983. This count, therefore, also
has a two-year statute of limitations. Count III alleges racial
discrimination in violation of Title VII. Filing a charge with the
EEOC is a prerequisite to bringing suit under Title VII. Chambers
v. American Trans Air, Inc., 17 F.3d 998, 1003 (7th Cir. 1994)
(citing Alexander v. Gardner-Denver Co., 415 U.S. 36, 44 (1974)).
An EEOC charge must be filed, at the latest, within 300 days after
the alleged unlawful employment practice occurred, 42 U.S.C.
§ 2000e-5(e) (1), and a civil complaint must be brought within 90
days of receiving a right to sue letter, 42 U.S.C. § 2000e-5(f) (1).
1. Tolling

Plaintiffs argue that their complaint is timely because the
statute of limitations was tolled during the pendency of the class
action. The Supreme Court has held that “the commencement of a
class action suspends the applicable statute of limitations as to
all asserted members of the class.” Crown, Cork & Seal Co. v.
Parker, 462 U.S. 345, 353-54 (1983) (quoting American Pipe &
Constr. Co. v. Utah, 414 U.S. 538, 554 (1974)). The Court noted
that such a rule protects the policies behind the class action
procedure-~efficiency and economy of litigation--because the
opposite rule would encourage each class member to file his own
individual suit to preserve his claims should the class action fail
to proceed. Id. at 349 (citing American Pipe, 414 U.S. at 553)

Further, the Court noted that this rule would not injure the


plaintiffs had alleged resulted in a disparate impact on African-
American employees. Id. That defendants had a legitimate
nondiscriminatory reason for engaging in that practice, while
potentially relevant, see Cooper, 467 U.S. at 880, is not
necessarily dispositive as to whether defendants had a legitimate
nondiscriminatory reason for terminating the individual plaintiffs
here. As dismissal is proper “only where it appears beyond a doubt
that the plaintiffs can prove no set of facts in support of their
claims that would entitle them to relief,” Travel All Over the
World, Inc. v. Kingdom of Saudi Arabia, 73 F.3d 1423, 1429-30 (7th
Cir. 1996), dismissal on the collateral estoppel grounds asserted
by defendants is denied.
B. Statutes of Limitations

Defendants argue that all of plaintiffs’ claims are time-
barred. Count I of plaintiffs’ complaint alleges racial
discrimination in violation of sections 1981 and 1983. The
statutes of limitations for claims under those sections are
borrowed from the forum state’s statute of limitations for personal
injury actions. Jones v. R.R. Donnelley & Sons Co., 305 F.3d 717,
728 (7th Cir. 2002) (section 1981); Mitchell v. Donchin, 286 F.3d
447, 450 n.1 (7th Cir. 2002) (section 1983). Thus, in Illinois,
the statute of limitations for claims under those sections is two
years. Jones, 305 F.3d at 728; Mitchell, 286 F.3d at 450 n.1.

Count II alleges discrimination on the basis of political



determined. In the second (remedial) phase, should a forbidden
pattern or practice be found, individual relief is determined.
Here, a verdict was returned in defendants’ favor after the
liability phase. Although a class was certified and defendants
successfully defeated the class pattern or practice claims, the
limitations periods for class members’ individual claims of
discrimination were tolled until the final adverse determination of
the class claims. Edwards v. Boeing Vertol Co., 717 F.2d 761, 766
(3d Cir. 1983) vacated and remanded for further consideration in
light of Cooper by 468 U.S. 1201 (1984), reinstated by 750 F.2d 13
(3d Cir. 1984). Up until that point, class members were entitled
to rely on named plaintiffs to pursue litigation on their behalf.
Not permitting tolling of the statute of limitations on individual
claims during the liability phase would frustrate the purposes of
the class action device for the same reasons discussed in Crown,
Cork & Seal and American Pipe. If class members’ claims were not
tolled, each class member would be forced either to intervene in
the class action or file individual protective suits to prevent the
running of the statute. Further, as in Crown, Cork & Seal and
American Pipe, the purposes of statutes of limitation are not
frustrated by permitting tolling during the pendency of the
liability phase of a pattern and practice class action. Defendants
here were clearly on notice of the adverse claims against them, and

plaintiffs cannot be accused of sleeping on their rights when a


“snot Order Fh (06/97)

United States District Court, Northern District of Minois

Ni f Assigned Judg BI] aj: Sitting Judge if Other
vor Magistrate Judge Elaine E. Bucklo than Assigned Judge
CASE NUMBER 02 C 6289 DATE 9/29/2003
CASE Brewton, et al. vs. City of Harvey, et al.
TITLE

of the motion being presented, }

[In the following box (a) indicate the party filing the motion, c.g,, plaintiff, defendant, 3rd patty plaintiff, and (b) state briefly the nature

OOFRCP4(m) (Local Rule 41.1 CFRCP41(a)(1) [2 FRCP41(a)(2).

a1) sf {For further detail see order attached to the original minute order.]

MOTION:
DOCKET ENTRY:

(a) oO Filed motion of [ use listing in “Motion” box above.]

Q) Oo Brief in support of motion due

(3) Q Answer brief to motion due___._ Reply to answer briefdue_____.

(4) Q Ruling/Hearingon____setfor____at

(5) Q Status hearing[held/continued to] [set for/re-set for}on___ set for__at

(6) QO Pretrial conference[held/continued to] [set for/re-set for]on___——ssetfor_ at
(7) Oo Trial{set for/re-set for]on__ at

(8) a [Bench/Jury trial] [Hearing] held/continued to __at

(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}

do) «of [Other docket entry] Enter Memorandum Opinion and Order granting in part and denying in part
defendants’ motion to dismiss (5-1). The motion is denied as to Counts ] and II and granted as to Count
III. Defendants’ request to sever plaintiffs’ claims pursuant to Rule 21 is also granted. Discovery is
ordered closed on 1/31/04. Pretrial order will be due by 2/27/04; and response to any motions in limine
by 3/12/04. Pretrial conference set for 3/26/04 at 3:00 p.m. and trial set for 4/12/04 at 9:30 a.m.

No notices required, advised in open court.
2

No notices required. number of notices

oY | Notices mailed by judge's staff. SEP 3.0 2003

Notified counsel by tclephone. dale docketed

Docketing to mail notices.

Mail AO 450 form.

oting dopury marals

Copy to judge/magistrate judge.
srsm2003

courtroom dite nile notice
wala ,
2A Ge

MPS deputy's Mp)
initials

Datestitne received in
‘central Clerk's Office ‘nailing deputy initials



Seventh Circuit has never applied the single filing rule to allow
piggybacking onto a timely-filed EEOC charge in a separate law
suit, and Judge Moran in Zuckerstein expressly held that “at least
one complying plaintiff must be a party to the suit.” 663 F. Supp.
at 574 (emphasis added). Because none of the plaintiffs party to
this suit have timely filed a charge with the EEOC, their Title VII
claim (Count III) is dismissed.
II. Request for Severance

Defendants argue that even if plaintiffs’ claims are not
precluded or time-barred, they are misjoined and should be severed
pursuant to Rule 21. Parties may join in one action as plaintiffs
if they seek relief with respect to the same transaction or
occurrence (or series of transactions or occurrences) and if any
question of law or fact common to all the plaintiffs will arise in
the action. Fed. R. Civ. P. 20(a). While all nineteen plaintiffs
seek relief for alleged discrimination relating to personnel cuts
subsequent to the 1995 mayoral election, and there may be some
overlap of legal and factual issues among plaintiffs, I think it
best to sever the cases. My refusal to dismiss Counts I and II is
premised entirely on the fact that while the Barner action resolved

claims of class discrimination, claims of individual discrimination

plaintiff who successfully intervenes and one who is unsuccessful,
the court held that “a plaintiff, such as Calloway, who
unsuccessfully moves to intervene in the lawsuit of a plaintiff who
has filed an EEOC charge may invoke the single filing rule.” 986
F.2d 450.

11



in the other circuits is to recognize the single~filing rule, at
least under appropriate circumstances.”). It is clear that as
class members in the Barner action, plaintiffs were entitled to
rely on the named plaintiffs’ timely filing of EEOC charges, as
each member of a class action is not required to file individual
EEOC complaints once one member of the class has done so.
Romasanta v. United Airlines, Inc., 537 F.2d 915, 918 (7th Cir.
1976). The issue here is whether plaintiffs in this action can
continue to piggyback on the timely~filed EEOC charges of the named
plaintiffs in the Barner action.

Plaintiffs cite only one case in which a plaintiff who had not
filed a timely EEOC charge was able to apply the single filing rule
and piggyback on to the timely filed EEOC charge of a plaintiff in
a completely different lawsuit. Calloway v. Partners National
Health Plans, 986 F.2d 446 (11th Cir. 1993). That case does not
stand for the general proposition that a plaintiff who does not
file an EEOC charge can piggyback on the timely-filed EEOC charge
of a plaintiff in a separate suit, even when the suits arise out of

similar discriminatory treatment in the same time frame.? The

3-In Calloway, the plaintiff who had not filed an EEOC charge
filed his own suit only after he had unsuccessfully attempted to
intervene in the lawsuit of a plaintiff who had timely filed an
EEOC charge. The Eleventh Circuit had previously extended the
single filing rule to apply to plaintiffs in multi-plaintiff non-
class action lawsuits in which at least one co~plaintiff had filed
a timely EEOC charge. Thus, the plaintiff in Calloway would have
received the benefit of the single filing rule had he successfully
been able to intervene. Not wanting to distinguish between a

10


policies behind statutes of limitations--putting defendants on
notice of adverse claims and preventing plaintiffs from sleeping on
their rights-~because such ends are met when a class action is
filed. Id. at 352-53 (citing American Pipe, 414 U.S. at 555, 561).

Crown, Cork & Seal and American Pipe both involved plaintiffs
who had been putative members of a proposed class, certification of
which was ultimately denied. While the Court in Crown, Cork & Seal
held that the statute of limitations remained tolled “until class
certification is denied,” 462 U.S. at 354, the tolling rule is not
limited to situations in which class certification is ultimately
denied. Realmonte v. Reeves, 169 F.3d 1280, 1284 (10th Cir. 1999
(“[T]here are a number of cases in which the tolling rule of
American Pipe has been applied when a class action has been
certified.”); Tosti v. City of Los Angeles, 754 F.2d 1485, 1488
(9th Cir. 1985) (“Although the facts in both Crown, Cork & Seal and
American Pipe involved decertification of the underlying class
action, whereas in this case certification was granted, the Supreme
Court has made clear that such a distinction is not controlling.”).
Here, a class was certified and trial proceeded on “pattern or
practice” discrimination claims against the defendants. Pattern or
practice class actions typically proceed in two phases. See Int’l
Bhd. of Teamsters v. United States, 431 U.S 324 (1977). In the
first (liability) phase, the issue of whether an employer has

engaged in a forbidden pattern or practice of discrimination is


the City of Harvey (as well as other defendants) alleging wrongful
termination of city employees based on race and their support of
former Mayor Johnson. Barner v. City of Harvey, No. 95 C 3316
(N.D. Ill. filed June 5, 1995) (Guzman, J.) (“Barner action”)
Plaintiffs here were putative class members. The case went to a
jury and a verdict was returned in defendants’ favor. Barner (Nov.
21, 2001) (order entering judgment on the verdict).?
A. Preclusion

Defendants argue that plaintiffs’ claims are barred by res
judicata and/or collateral estoppel. Defendants argue that the
jury verdict in the Barner action decided the same issue between
the same parties as the present case. While the Barner action was
a class action involving alleged racial and political affiliation
discrimination following the 1995 election and in which plaintiffs
and defendants were parties, that action is not preclusive of
plaintiffs’ complaint. The Supreme Court has held that a judgment
in a class action determining that an employer did not engage ina
general pattern or practice of discrimination against a certified
class of employees does not preclude a class member from
maintaining a subsequent civil action alleging an individual claim

of discrimination. Cooper v. Fed. Reserve Bank of Richmond, 467

+ I may properly consider public court documents in deciding
a motion to dismiss without converting the motion to one for
summary judgment. Henson v. CSC Credit Servs., 29 F.3d 280, 284
(7th Cir. 1994).


Fed. R. Civ. P. 21, or require separate trials pursuant to Fed. R.
Civ. P. 42(b). I deny the motion to dismiss as to Counts I and II,
grant the motion to dismiss as to Count III, and grant the request
to sever.
I. Motion to Dismiss

On a motion to dismiss, I take all allegations in the
complaint as true. Wilczynski v. Lumbermens Mut. Cas. Co., 93 F.3d
397, 401 (7th Cir. 1996). The facts as alleged by plaintiffs are
as follows. Plaintiffs, all of whom are African-American, were
city employees and supporters of longtime Harvey mayor David
Johnson. Mr. Johnson is also African-American. On April 4, 1995,
Mayor Johnson lost a reelection bid to Harvey Chief of Police
Nicholas Graves, who is white. Within days of taking office, Mayor
Graves terminated most of the plaintiffs from their positions under
the guise of budget cuts. Other plaintiffs were given the
ultimatum to resign or face termination. Some of these plaintiffs
resigned and others were terminated. In addition, Mayor Graves
reinstated city employees who had been terminated under Mayor
Johnson’s tenure, and rescinded disciplinary actions pending
against his political supporters. Further, Mayor Graves ignored
city ordinances requiring city employees to reside in Harvey,
reinstating political supporters who had been terminated or
suspended for residency violations and hiring others from outside

Harvey. In 1995, a class action was filed against Mayor Graves and


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

DOCKETED

GEORGE BREWTON, et al.,
SEP 3 9 2003

Plaintiffs,
v.

No. 02 C 6289
CITY OF HARVEY and NICHOLAS GRAVES,

Defendants.

MEMORANDUM OPINION AND ORDER

George Brewton and eighteen other plaintiffs filed a three-
count complaint against the City of Harvey (“City”) and its mayor,
Nicholas Graves, alleging that plaintiffs had been terminated from
their positions as city employees based on their race and their
support for former Harvey mayor David Johnson. Count I, alleging
unlawful termination based on race, was brought under 42 U.S.C.
§§ 1981, 1983. Count II, alleging unlawful termination for
exercising their first amendment right to support the former mayor,
was brought under 42 U.S.C. § 1983. Count III, alleging unlawful
racial discrimination, was brought against the City only, and was
brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
SS 2000e et seq. Defendants’ motion to dismiss argues that
plaintiffs’ claims are barred by res judicata or collateral
estoppel based on a previous class action against the City, and
that plaintiffs’ claims are time-barred. In the alternative,

defendants request that I sever the plaintiffs’ claims pursuant to

Ad



survived (and the relevant statutes of limitation were tolled). To
allow the plaintiffs to join in one action here would blur the
distinction that is crucial to allowing their individual cases to
proceed in the first place. Plaintiffs’ cases are to proceed
separately. See Barner v. Harvey, No. 95 C 3316, 2003 WL 1720027,
(N.D. Ill. Mar. 31, 2003) (Guzman, J.) (granting motion to sever
the individual claims of the nine named plaintiffs in the Barner
action following verdict for defendants on the pattern or practice
class claims).
III. Conclusion

Because plaintiffs’ claims here are not precluded or time-~
barred, defendants motion to dismiss is DENIED as to Counts I and
II. However, because plaintiffs failed to comply with Title VII’s
EEOC filing requirements, defendants motion to dismiss is GRANTED as
to Count III. Further, defendants’ request to sever plaintiffs’

claims pursuant to Rule 21 is Grantep.

Elaine E. Bucklo
United States District Judge

Dated: September 29, 2003

12