Chicago Police Sergeants Association et al v. City of Chicago

Filing 155

MEMORANDUM Opinion and Order Signed by the Honorable Robert M. Dow, Jr on 7/6/2011. Notices Mailed by Judge's Staff (tbk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CHICAGO POLICE SERGEANTS
ASSOCIATION, SERGEANT LISA PRICE,
and SERGEANT RICHARD WISER,
Plaintiffs,
v.
CITY OF CHICAGO,
Defendant.

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Case No.: 08-cv-4214
Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER
On July 24, 2008, Plaintiffs Chicago Police Sergeants Association (the “Association”),
Sergeant Lisa Price (“Price”), and Sergeant Richard Wiser (“Wiser”) (collectively “Plaintiffs”)
filed their complaint [1] against Defendant City of Chicago (the “City”). Plaintiffs’ claims are
based on the City’s promotional examination for the rank of police lieutenant, and the City’s use
of a re-test in promoting applicants after unspecified administration problems hindered the first
test.

On September 3, 2010, the Court granted Defendant’s motion for judgment on the

pleadings pursuant to Federal Rule of Civil Procedure 12(c) and dismissed Plaintiffs’ complaint
without prejudice. See Chicago Police Sergeants Assoc. v. City of Chicago, 2010 WL 3526486,
at *7 (N.D. Ill. Sept. 3, 2010). The Court allowed Plaintiffs to file an amended complaint, which
they did on November 3, 2010 [135]. Currently before the Court is Defendant’s motion [139] to
dismiss Plaintiffs’ First Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure.

For the reasons stated below, the Court concludes that Plaintiffs’ First

Amended Complaint [135] fails to properly state a claim arising under the Shakman Decree.
Accordingly, Defendant’s motion to dismiss [139] is granted. However, as explained below,

because Plaintiffs’ claims do not appear to be completely time barred and because Plaintiffs may
be able to correct the other flaws in their complaint, the dismissal is not with prejudice.
Plaintiffs are given 21 days from the date of this order in which to file an amended complaint if
they believe that they can cure the pleading deficiencies discussed below. This will be Plaintiffs’
final opportunity—any subsequent dismissal will be with prejudice.
I.

Factual Background1
In July 2006, the City announced that it would be conducting an examination for the rank

of lieutenant (the “Lieutenant’s Exam”). The examination was comprised of a written and an
oral portion. In order to take the oral portion, an applicant first had to pass the written portion,
which both Price and Wiser did. Wiser and Price took the oral portion on January 6, 2007 (the
“January test”), but were told that there were unspecified problems with the administration of the
oral exam and that 51 of the 660 test results might not have been properly recorded. On May 1,
2007, the City announced that it would readminister the oral portion on June 23, 2007 (the “June
re-test”) using the same questions that had appeared on the January test, and that it would allow
anyone who had taken the January test the option of taking the June re-test or resting on his or
her January test performance. Based on the January test and the June re-test, the City created a
promotion list from which the City made all promotions.
On July 24, 2008, Plaintiffs filed their Complaint [1], alleging that the City violated the
Shakman Decree because the City re-administered the oral portion of the Lieutenant’s Exam in
June using the same questions that had appeared on the January test. Comp. ¶ 32; see also FAC

1

See the Court’s prior opinion, Chicago Police Sergeants Assoc., 2010 WL 3526486 at *1-*3, for a more
detailed discussion of the relevant factual background. For purposes of Defendant’s motion, the Court
assumes as true all well-pleaded allegations set forth in the complaint. See, e.g. Killingsworth v. HSBC
Bank Nevada, N.A., 507 F. 3d 614, 618 (7th Cir. 2007). Citations to Plaintiffs’ First Amended Complaint
are set out as “FAC ¶ ___.”

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¶¶ 29-31. (Plaintiffs alleged that the whole point of the oral exam was to test applicants’ ability
to think on their feet, and re-using the same questions from the January test completely vitiated
that purpose). Plaintiffs further alleged that after the January test, but before the June re-test,
certain applicants – but not Price and Wiser – had access to senior command personnel or other
supervisors who allowed them to review the test questions and provided them with information
about the proper format and order of answers. Compl. ¶ 33; see also FAC ¶ 32. Additionally,
Plaintiffs alleged that Price and Wiser could not make an informed decision as to whether they
should sit for the June re-test or rest on their prior score because the City had not evaluated or
graded the January test at the time that they were required to decide if they should sit for the June
re-test. Compl. ¶ 26; see also FAC ¶ 26.
On September 3, 2010, the Court dismissed Plaintiffs’ Shakman claim without prejudice
because “[t]here simply [were] no factual allegations in the complaint sufficient to raise above
the ‘speculative level’ any possibility that the City’s conduct regarding the June re-test was
politically motivated or to put the City on notice of the nature of any Shakman-related claims
against it.” Chicago Police Sergeants Assoc., 2010 WL 3526486 at *5. Nevertheless, the Court
allowed Plaintiffs to file an amended complaint if they believed that they could overcome the
flaws identified in the order. Id. at *6. The Court cautioned that should Plaintiffs choose to file
an amended complaint, “Plaintiffs must plead sufficient factual allegations showing how City
decision makers’ conduct regarding the June re-test was politically motivated.” Id.
On November 3, 2010, Plaintiffs filed their First Amended Complaint [135]. Plaintiffs
attempted to cure the pleading defects in their Shakman claim by adding five paragraphs under
the heading “Count I- Shakman Decree.” They read in their entirety as follows:

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43.

44.

Upon information and belief, certain individuals that the City wanted
promoted because of their political affiliations, had not passed the January
6th Oral Exam. Therefore, the City re-administered the test to give those
certain individuals another opportunity to make the Promotional List.

45.

For example, Anthony Carothers took the June 23rd Retest and was
immediately placed on the Promotional List. Furthermore, Anthony
Carothers was part of the first group of individuals from the Promotional
List that was promoted to Lieutenant.

46.

At the time of Anthony Carothers’ promotion, his brother, Ald. Issac “Ike”
Carothers (29th Ward) was chairman of the City Council’s Police and Fire
Committee. The promotion of Anthony Carothers was ushered forward for
solely political reasons and, specifically, because his brother was the
chairman of the City Council’s Police and Fire Committee.

47.

II.

Furthermore, upon information and belief, the City administered the June
23rd Re-test to specifically advance its politically-related causes and promote
certain individuals with political connections.

Accordingly, the City’s administration of the June 23rd Test violated the
Shakman Decree by attempting to advance a specific and politically-related
cause.

Legal Standard
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the

sufficiency of a complaint, not the merits of the case. Gibson v. City of Chicago, 910 F.2d 1510,
1520 (7th Cir. 1990). In ruling on a motion to dismiss pursuant to Rule 12 (b)(6), courts “must
accept as true all the plaintiff’s well-pleaded factual allegations and the inferences reasonably
drawn from them.” Id. at 1521 (quoting Yeksigian v. Nappi, 900 F.2d 101, 102 (7th Cir. 1990)).
To survive a Rule 12(b)(6) motion to dismiss, the complaint first must comply with Rule
8(a) by providing “a short and plain statement of the claim showing that the pleader is entitled to
relief” (Fed. R. Civ. P. 8(a)(2)), such that the defendant is given “fair notice of what the * * *
claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Second, the factual allegations
in the complaint must be sufficient to raise the possibility of relief above the “speculative level,”

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assuming that all of the allegations in the complaint are true. E.E.O.C. v. Concentra Health
Services, Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 569 n.14).
“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic recitation of the elements of a cause of action
will not do.” Id. at 555 (citations, quotation marks, and brackets omitted).
III.

Discussion
A.

Count I : Shakman Decree

The Court discussed the requirements for stating a claim under the Shakman Decree in its
prior opinion. Chicago Police Sergeants Assoc., 2010 WL 3526486 at *4. Briefly, the Shakman
Decree prevents the City of Chicago from “conditioning, basing or knowingly prejudicing or
affecting any term or aspect of governmental employment, with respect to one who is at the time
already a governmental employee, upon or because of any political reason or factor.” Shanahan
v. City of Chicago, 82 F.3d 776, 780 (7th Cir. 1996) (quoting Shakman v. Democratic Org. of
Cook County, 481 F. Supp. 1315, 1358 (N.D. Ill. 1979)). To state a claim under the Shakman
Decree, a plaintiff must establish that a political reason or factor was the cause of the complained
of decision. Id. Once the plaintiff shows this, “the burden shifts to the defendant to show that it
would have made the same decision notwithstanding the protected conduct.” Id.
Defendant asserts three arguments against Plaintiff’s revised Shakman claim and the
Court will address each of them in turn. First, Defendant argues that the amended Shakman
claim is untimely, because it contains new facts and independent theories of wrongdoing that do
not relate back to Plaintiffs’ original complaint. Second, Defendant argues that the amended
claim is subject to dismissal because it contains internally inconsistent factual allegations.

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Finally, Defendant argues that the amended claim fails to plausibly allege that the City
administrated the June re-test to specifically advance its politically-related causes and promote
certain individuals with political connections.
In their memorandum in support of the instant motion ([144] at 7-10), Defendant argues
that Plaintiffs’ amended Shakman claim is time-barred. The Seventh Circuit teaches that because
“[t]he Shakman decree is closely analogous to Title VII of the Civil Rights Act of 1964” the
“180-day period of limitations established by Title VII applies to contempt proceedings under
the Shakman decree.” Smith v. City of Chicago, 769 F.2d 408, 413 (7th Cir. 1985) (“In order to
promote clarity, we adopt the entire corpus of Title VII timing rules, including those defining the
accrual of the claim and tolling the period of limitations.”). Because under Shakman “the district
court, sitting to enforce its decree, plays the role of both agency and court,” the requirement to
first file a charge with the EEOC is removed. Id. Instead, in order to be timely, a complaint
alleging a Shakman violation must be filed within 180 days of the alleged “discriminatory act.”
Id.
However, a plaintiff’s failure to adhere to a statute of limitations is an affirmative defense
and therefore generally is not amenable to dismissal at the complaint stage. United States v.
Lewis, 411 F.3d 838, 842 (7th Cir. 2005). Dismissal on statute of limitations grounds is only
appropriate where a plaintiff pleads herself out of court by establishing that a defendant is
entitled to a limtiations defense. See Cancer Found., Inc. v. Cerberus Capital Mgmt., LP, 559
F.3d 671, 675 (7th Cir. 2009) (dismissal appropriate where it is “clear from the face of the
amended complaint that it [was] hopelessly time-barred”); U.S. Gypsum Co. v. Ind. Gas Co.,
Inc., 350 F.2d 623, 626 (7th Cir. 2003) (“A litigant may plead itself out of court by alleging (and
thus admitting) the ingredients of a defense”).

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Here, it is clear that any claims based solely on the administration of the June 23, 2007
re-test are time barred; for Plaintiffs filed their initial complaint in this Court more than a year
after the re-test took place. However, in a recent case of which Defendant is well aware, the
Supreme Court construed the timing rules under Title VII claims to hold that a plaintiff who did
not file a timely charge challenging the initial adoption of a particular discriminatory practice
may still bring a claim under Title VII based on the later implementation of that previouslyadopted practice. Lewis v. City of Chicago, 130 S.Ct. 2191, 2197-98 (2010). In Lewis, the
plaintiffs sued years after the City of Chicago administered an admittedly-discriminatory
examination to applicants seeking to serve in the Chicago Fire Department. Id. at 2195. The
scores from that exam were used to build a list of qualified applicants who could be hired into
the department, which the City hired from in eleven rounds of hiring over the next six years. Id.
at 2195-96. The Supreme Court found that the City’s initial “decision to adopt the cutoff score
(and to create a list of the applicants above it) gave rise to a freestanding disparate-impact claim”
that, because no timely charge was filed attacking it, was time barred. Id. at 2199. However, the
Court clarified that each time that the City implemented its earlier decision and excluded the
applicants with lower scores on the exam, a “new violation occurred.” Id. (citing 42 U.S.C. §
2000e-2(k)). Lewis, therefore, stands for the proposition that later implementation of a
discriminatory policy can qualify as a new, actionable “employment practice.” See Id. at 219899. Of course, in order to be timely, a plaintiff must identify a “present violation” within the
300-day limitations period preceding the filing of the charge (or in this case, the complaint).
See 130 S.Ct. at 2199 (citing United Air Lines, Inc. v. Evans, 431 U.S. 553, 558 (1977)).
Plaintiffs’ amended complaint seeks not only a declaration that the June 23, 2007 re-test
was illegal, but also a declaration that the “City of Chicago’s practice of making promotions to

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the grade of lieutenant based on test scores, interviews, or other information gathered” during the
challenged testing was wrongful. FAC at Prayer for Relief. Dismissal is inappropriate because
Plaintiff’s amended complaint does not, on its face, demonstrate that no promotions were made
during the 300-day limitations period preceding the filing of that pleading. Cancer Found.,
Inc., 559 F.3d at 675. To the contrary, it appears from Defendant’s brief that the City has
promoted “dozens of sergeants” based on the results from the challenged examinations, in a
number of rounds of promotions. Def. Mem. [144] at 3. According to Defendant’s brief, the
“first round of promotions” based on the examination took place “in January 2008.” Id. at 8; see
also Def. Ex. F (Personnel Order No. 2008-003 (list of promotions dated January 16, 2008)).
There was a second round of promotions in April of 2009 (id.; Def. Ex. F) and “the third, and
most recent, round of promotions occurred in October 2010” (id. at 3 n.4).
Having determined that the face of the complaint does not demonstrate that Plaintiff’s
Shakman claim is completely time barred, the Court could end its analysis here. However, the
Court will write further to clarify which aspects of the Shakman claim are and are not
“hopelessly time-barred.” Cancer Found., Inc., 559 F.3d at 675. Much of the parties’ briefing
on the instant motion concerned whether or not the amended complaint (filed on November 3,
2010) “relates back” to Plaintiffs’ original complaint, which was filed on July 24, 2008. For the
reasons explained above, the “relation back” question does not bear on whether Plaintiff’s entire
Shakman claim is untimely. But this issue is not one without any significance; for, if the
amended complaint did relate back to the original pleading, Plaintiffs could sue for any
promotions that occurred in the 300 days preceding July 24, 2008 (and after)—a time period that
would include both the 2008 and 2009 promotions. On the other hand, if the amended complaint
did not relate back to the original complaint, only discriminatory acts that occurred within the

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300 day period preceding November 3, 2010 would be actionable (the October 2010 promotion
falls within this period).
The Court concludes that the amended Shakman claim does not relate back to original
Shakman claim. An amendment to a pleading relates back to the date of the original pleading
when “the amendment asserts a claim or defense that arose out of the conduct, transaction, or
occurrence set out -- or attempted to be set out -- in the original pleading.” Fed. R. Civ. P.
15(c)(1)(B). In construing this rule, courts have focused “whether the original complaint gave
the defendant enough notice of the nature and scope of the plaintiff’s claim that he shouldn’t
have been surprised by the amplification of the allegations of the original complaint in the
amended one.” Santamarina v. Sears, Roebuck & Co., 466 F.3d 570, 573 (7th Cir. 2006); see
also Mayle v. Felix, 545 U.S. 644, 664 (2005) (“So long as the original and amended petitions
state claims that are tied to a common core of operative facts, relation back will be in order.”).
Plaintiffs argue that the amended Shakman claim is based on more specific facts added to
the same matters alleged in the original Shakman claim, of which Defendant had notice.
However, the Court has previously concluded that Plaintiffs’ original Complaint did “not allege
that the City’s decision to offer the re-test or the way in which the re-test was conducted was
designed to favor or prejudice anyone because of his or her political affiliations or activities.”
Chicago Police Sergeants Assoc., 2010 WL 3526486 at *5. The Court further concluded that
Plaintiffs’ original Complaint contained no factual allegations “to put the City on notice of the
nature of any Shakman-related claim against it.” Id. Because Plaintiffs failed to put the City on
notice of any Shakman-related claim until now, there is nothing that the new factual allegations
could reasonably relate back to. See Santamarina, 466 F.3d at 573.

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In addition, the amended Shakman claim cannot relate back to the original claim because
the newly added factual allegations are directly contrary to the allegations set out in the original
complaint. See Mayle, 545 U.S. at 664. Plaintiffs’ original Shakman claim was based on
allegations that the City violated the Shakman Decree because sergeants, including Price and
Wiser, could not make an informed decision as to whether they should take the June re-test given
that the City had not evaluated or graded the January test at the time they were required to decide
if they should sit for the June re-test. Compl. ¶ 28. The amended complaint contains that same
allegation, see FAC ¶ 26, but also alleges that “certain individuals that the City wanted promoted
because of their political affiliations, had not passed the January 6th Oral Exam” and that “the
City re-administered the test to give those certain individuals another opportunity to make the
Promotion List.” FAC ¶ 44. The most logical construction of the allegation in ¶ 44 of the
amended complaint—that certain politically-connected applicants “had not passed the January
6th Oral Exam”—is that the City scored the test and these “certain individuals” failed. So
construed, the original complaint alleged that the City never scored the January test, while the
amended complaint alleges that the City both did and did not score the January test. The Court
cannot see how the new allegation—that the City did score the January test—could be part of the
“common core of operative facts” alleged in the original complaint, when that allegation is
directly contradictory to the factual picture presented in the initial pleading.
The discussion above segues neatly into Defendant’s second argument: that Plaintiff’s
new Shakman claim is subject to dismissal because it contains internally inconsistent factual
allegations (in that it alleges that the City both did and did not score the January test).
A party may state “as many separate claims or defenses as the party has regardless of
consistency.” Fed. R. Civ. P. 8(e)(2). The liberal federal pleading rules allow plaintiffs to plead

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legal theories in the alternative. See Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 805
(1999) (“Our ordinary Rules recognize that a person may not be sure in advance upon which
legal theory she will succeed, and so permit parties to ‘set forth two or more statements of a
claim or defense alternatively or hypothetically.’”).

Additionally, contrary to Defendant’s

contention, a plaintiff may alternatively plead inconsistent facts as well as inconsistent
theories. See Fed. R. Civ. P. 8(d); Holman v. Indiana, 211 F.3d 399, 406-07 (7th Cir.
2000); Moriarty v. Larry G. Lewis Funeral Dir. Ltd., 150 F.3d 773, 777-78 (7th Cir. 1998);
Ellison v. Aurora East School Dist. 131, 2009 WL 884949, at *2 (N.D. Ill. March 27,
2009); Guarantee Trust Life Ins. Co. v. American United Life Ins. Co., 2003 WL 23518661, at
*1-2 (N.D. Ill. Dec. 17, 2003); Charles Alan Wright & Arthur R. Miller, FEDERAL PRAC. &
PROC.: CIV. 3d § 1283 at 726-27 (2004). But compare Tamayo v. Blagojevich, 526 F.3d 1074,
1086 (7th Cir. 2008) (dictum cited by Defendant) (“Although our pleading rules do not tolerate
factual inconsistencies in a complaint, they do permit inconsistencies in legal theories.”).
The dictum in Tamayo regarding factual inconsistencies not being permitted is a
reference to not being able to plead legal conclusions or conclusory facts that are inconsistent
with detailed factual allegations in the body of a complaint or inconsistent with facts shown by
supporting exhibits attached to a complaint. See id. at 1086 (citing Massey v. Merrill Lynch &
Co., 464 F.3d 642, 650 (7th Cir. 2006); Kolupa v. Roselle Park Dist., 438 F.3d 713, 715 (7th Cir.
2006), abrogation recognized, EEOC v. Concentra Health Serv., Inc., 496 F.3d 773, 777 (7th
Cir. 2007); McCready v. eBay, Inc., 453 F.3d 882, 888 (7th Cir. 2006); Jackson v. Marion
County, 66 F.3d 151, 153-54 (7th Cir. 1995)). A Plaintiff “pleads himself out of court when it
would be necessary to contradict the complaint in order to prevail on the merits.” Tamayo, 526
F.3d at 1086 (“If the plaintiff voluntarily provides unnecessary facts in her complaint, the

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defendant may use those facts to demonstrate that she is not entitled to relief.”). The crux of
Plaintiff’s amended Shakman claim is that “certain individuals that the City wanted promoted
because of their political affiliations, had not passed the January 6th Oral Exam.” FAC ¶ 44. The
allegation that the City did not grade the exam is directly at odds with this crucial allegation in ¶
44. For this reason, Plaintiff’s Shakman claim is dismissed. However, as explained below,
because this flaw could be corrected by repleading, the Court in its discretion (see, e.g. Fannon v.
Guidant Corp., 583 F.3d 995, 1002 (7th Cir. 2009)), will give Plaintiffs a last opportunity to do
just that. And because the Court surmises that Plaintiffs will file yet another amended pleading,
the Court will move on to consider the remainder of Defendant’s arguments.
Defendant’s last argument against the Shakman claim is that “even if Plaintiffs’
contradictory allegations could somehow be reconciled * * * [t]here are still no allegations in the
Amended Complaint sufficient to raise above the ‘speculative level’ any possibility that the
City’s offering of the June re-test was politically motivated.” (Def. Mem. at 12). The Court
disagrees. If Plaintiffs drop their allegation that the City never graded the January test, they have
alleged facts sufficient to plausibly state a claim under the Shakman doctrine.
Again, to establish a Shakman violation, Plaintiffs must plead and prove that a political
reason or factor was the cause of the complained of decision. Shanahan v. City of Chicago, 82
F.3d 776, 780 (7th Cir. 1996); see also Cusson-Cobb v. O'Lessker, 953 F.2d 1079, 1081 (7th Cir.
1992); Everett v. Cook County, 704 F. Supp. 2d 794, 504 (N.D. Ill. 2010). Plaintiffs allege that
“certain individuals that the City wanted promoted because of their political affiliations, had not
passed the January 6th Oral Exam.” FAC ¶ 44. Plaintiffs further allege that “the City readministered the test to give those certain individuals another opportunity to make the
Promotional List.”

Id.

Plaintiffs then provide an example – Sergeant Anthony Carothers

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benefitted from political affiliations with his brother, Alderman Issac Carothers, who chaired the
City Council’s Police and Fire Committee. Id. at ¶¶ 45-46.2
These allegations are sufficient to give Defendant fair notice of the nature of Plaintiffs’
claim. Twombly, 550 U.S. at 555. And while it seems unlikely that the City would re-administer
an entire test (and make that retesting open to all applicants) simply to favor a few politicallyconnected applicants who had failed the first time, such a theory is not so facially implausible so
as to render the complaint subject to dismissal. Id.; Concentra Health Services, Inc., 496 F.3d at
776. Defendant argues that it had no way of even knowing which applicants would take the retest, or even if those who took the re-test would improve their scores. Here, it is plausible that
the City thought that an individual might perform better the second time that he encountered the
same test questions.
Accordingly, and for the reasons discussed above, Plaintiffs’ Shakman claim is
dismissed without prejudice.3
B.

Remaining State Claims

Plaintiffs’ sole basis for federal jurisdiction over this lawsuit is their Shakman claim
(Count I). Plaintiffs’ First Amended Complaint also includes five state law claims: writ of
mandamus (Count II), permanent injunction (Count III), temporary injunction (Count IV),
2

Plaintiffs do not specifically allege that Carothers failed the January test. However, based on the
structure and organization of ¶¶ 49 and 50, and reading all reasonable inferences in favor of Plaintiffs, the
Court could interpret the complaint as identifying Carothers as an “example” of one of the “individuals
that the City wanted promoted because of their political affiliations [and who] had not passed the January
6th Oral Exam.” Similar analysis could lead the Court to infer that the City told applicants like Carothers
that they had failed, and that they should take the re-test. See ¶¶ 44-45.
3

This lawsuit has been pending in this Court for nearly three years. Furthermore, the Court is aware that
two other Chicago Police sergeants unsuccessfully pursued an injunction in the Circuit Court in June of
2007, seeking to bar the City from administering the re-test. According to Defendant, the amended
complaint is the first instance in which the allegations in ¶¶ 43-47 have been raised. As puzzling though
this may be, the Court, as it must, accepts the allegations in ¶¶ 43-47 as true for the purpose of the instant
motion.

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fraudulent misrepresentation (Count V), and declaratory judgment (Count VI).

Having

dismissed the Shakman claim, for the reasons explained in the Court’s prior order, the Court
would normally decline to assert supplemental jurisdiction over these state law claims. See
Groce v. Eli Lilly & Co., 193 F.3d 496, 501 (7th Cir. 1999). However, because the Court expects
that Plaintiffs will file an amended complaint in this matter, the Court will address the arguments
that Defendant makes against Plaintiff’s state law claims, and dismisses all of them.
First, the Court dismisses Count II of the complaint, which is for a writ of mandamus.
Mandamus is an “extraordinary” remedy and is appropriate “only where there is a clear right to
the requested relief, a clear duty of the [public official] to act, and clear authority in the [public
official] to comply with writ.” Orenic v. Illinois State Labor Relations Bd., 537 N.E. 2d 784,
791 (Ill. 1989). Furthermore, “[m]andamus usually issues to compel the performance of a
nondiscretionary, ministerial duty or act.” Chicago Ass’n of Commerce & Industry v. Regional
Transp. Authority, 427 N.E. 2d 153, 156 (Ill. 1981) (“Where the performance of an official duty
or act involves the exercise of judgment or discretion, the officer’s action is not subject to review
or control by mandamus.”). Plaintiffs allege that the City’s administration of the Lieutenant’s
Exam is a ministerial function and demand the City to implement fair testing procedures and to
discontinue use of the results of the 2007 round of testing as the basis for promotion to the rank
of lieutenant. FAC ¶ 59.
Count II is subject to dismissal for a number of reasons.

First, Plaintiffs fail to

demonstrate that they have a “clear right” to a promotional process other than the one that they
were subject to. To the contrary, Plaintiffs concede that they do not claim that they have a right
to promotion from sergeant to lieutenant. See Bigby v. City of Chicago, 766 F.2d 1053, 1057
(7th Cir. 1985) (“Promotion to lieutenant’s rank is not a matter of right and is not governed by

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fixed rules which if complied with automatically entitle the applicant to promotion.”); see also id.
at 1056 (there is no “constitutional right, unrelated to racial or other discrimination, to a rational
test for promotion to a higher rung in the civil service of a state or municipality”). Furthermore,
Plaintiffs have not alleged that there is a particular methodology that the City must employ in
regard to how it conducts tests for advancement. The City certainly exercised its discretion in
electing to offer the June re-test using the same questions as were used in January. Accordingly,
that decision falls outside the scope of a mandamus action, and Plaintiffs’ Count II is properly
dismissed. Chicago Ass’n of Commerce & Industry, 427 N.E. 2d at 156.
Next, Defendants argue that Count III (permanent injunction) and IV (temporary
injunction) should be dismissed as Plaintiffs have “plead no facts suggesting that they lack an
adequate remedy at law or that they will suffer irreparable harm absent injunctive relief.” (Def.
Mem. at 16). At the outset, Counts III and IV are dismissed because “‘injunctive relief and
specific performance are remedies, not independent causes of action.’” AT&T Capital Services,
Inc. v. Shore Financial Services, Inc., 2010 WL 2649874, at *17 (N.D. Ill. June 30, 2010)
(quoting Am. Nat'l Bank & Trust Co. of Chi. v. Allmerica Fin. Life Ins. & Annuity Co., 2003 WL
1921815, at *4 (N.D. Ill. April 21, 2003)); see also BLACK’S LAW DICTIONARY 201 (1979)
(defining cause of action as “[a] situation or state of facts which would entitle party to sustain
action and give him right to seek a judicial remedy in his behalf.”). If Plaintiffs believe that they
can meet the requirements of establishing their entitlement to an injunction, see id., they may file
a motion requesting such relief.
Similarly, Count VI seeks a declaratory judgment that the City’s use of the results from
the June re-test was illegal. In construing the Illinois declaratory judgment act, the Supreme
Court of Illinois held that “a declaratory judgment action is strictly remedial” and that “the

15

statute does not create substantive rights or duties, but merely affords a new, additional, and
cumulative procedural method for the judicial determination of the parties’ rights.” Beahringer v.
Page, 789 N.E.2d 1216, 1223-24 (Ill. 2003). “The essential requirements of a declaratory
judgment action are: (1) a plaintiff with a legal tangible interest; (2) a defendant having an
opposing interest; and (3) an actual controversy between the parties concerning such interests.”
Id. at 1223. Plaintiffs may be able to prove that they are entitled to a declaratory judgment.
However, Plaintiffs point to no legal authority suggesting that a declaratory judgment claim
alone could state an independent cause of action. Accordingly, Count VI is dismissed. Plaintiffs
should clarify the types of relief that they are seeking (namely, an injunction and a declaratory
judgment) in the “prayer for relief” section of the complaint.
The Court next considers whether Plaintiffs have adequately pled a claim for fraudulent
misrepresentation (Count V). They have not. In order to state a cause of action for fraudulent
misrepresentation, a plaintiff must establish that “(1) a false statement of material fact, (2)
knowledge or belief of the falsity by the party making it, (3) intention to induce the other party to
act, (4) action by the other party in reliance on the truth of the statements, and (5) damage to
other party resulting from such reliance.” Bd. of Education of City of Chicago v. A, C & S, Inc.
546 N.E.2d 580, 591 (Ill. 1989). In order to survive the pleading stage, the Supreme Court of
Illinois concluded that “[t]he facts which constitute an alleged fraud must be pleaded with
sufficient specifity, particularity and certainty to apprise the opposing party of what he is called
upon to answer.” Id. at 593; see also Fed. R. Civ. Proc. 9(b). Thus, the pleading must include
“what misrepresentations were made, when they were made, who made the representations and
to whom they were made.” Dloogatch v. Brincat, 920 N.E.2d 1161, 1166-67 (Ill. App. Ct. 1st
Dist. 2009); Pirelli Armstrong Tire Corp. Retiree Medical Benefits Trust v. Walgreens Co., 631

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F.3d 436, 442 (7th Cir. 2010) (quoting United States ex rel. Lusby v. Rolls-Royce Corp., 570
F.3d 849, 854 (7th Cir. 2009) (a plaintiff alleging fraud “ordinarily must describe the “who,
what, when, where, and how” of the fraud—‘the first paragraph of any newspaper story.’”)).
Plaintiffs fail to state a claim for fraudulent misrepresentation; in fact they do nothing more than
merely recite the basic elements of a fraud claim. Plaintiffs baldly allege that the City “made
numerous materially false statements in reference to the practices it would use to promote
sergeants to the grade of lieutenant,” but fail to identify any specific false statement. Similarly,
Plaintiffs fail to identify any action taken by CPSA members in reliance on those statements, or
damage to CPSA member resulting from reliance on the City’s fraudulent statements.4
IV.

Conclusion
For the foregoing reasons, Defendant’s motion to dismiss [139] is granted and Plaintiffs’

First Amended Complaint [135] is dismissed in entirety without prejudice. Plaintiffs are given
21 days from the date of this order in which to file an amended complaint if they believe that
they can cure the pleading deficiencies identified above, at least as to Count I (which provides
the sole basis for this Court’s original jurisdiction).

Dated: July 6, 2011

____________________________________
Robert M. Dow, Jr.
United States District Judge

4

In defense of Count V, Plaintiffs state that their fraud claim “should be subject to amendment pending
discovery and not subject to dismissal.” Plaintiffs cite no authority to support this statement, and the law
is otherwise. Fed. R. Civ. Proc. 12(b)(6); 9(b).

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