By D.M. Herra | Nov 21, 2018

A federal judge will allow a group of black Chicago Water Department employees to continue their class action accusing the city of a pattern of racial discrimination and hostility within the water department, even as she pared the lawsuit back.

The nine plaintiffs in the class action allege a variety of discriminatory acts, including being passed over or denied promotions that were given instead to less-qualified white employees; being denied overtime; being paid less than white employees; and being excessively disciplined for minor infractions – including complaining about racial discrimination.

The lawsuit claims Mayor Rahm Emanuel in 2017 acknowledged “there is a deeply ingrained culture of racial discrimination within the water department.” In addition to being denied advancement opportunities, the black employees claimed the workplace was outwardly hostile. Black employees regularly encountered threatening messages like hangman’s nooses in bathroom facilities, and blacks were nearly always assigned the highest-risk tasks in the most dangerous parts of the city, according to the complaint. The plaintiffs allege white employees, including supervisors and even commissioners, regularly used racial epithets when talking to or about blacks.

“All of the aspirations embodied in city-wide policies … went down the drain in the water department,” the complaint alleges. “The individual defendants communicated and knowingly condoned a policy to all of the supervisors within the water department that African-Americans were to be, or could with impunity be, treated with disdain, deprived of promotions, given less overtime, and harassed.”

Named defendants in the suit are the city of Chicago, former Water Commissioner Barrett Murphy, Chief Operating Engineer Joseph Lynch, and current and former deputy water commissioners William Bresnahan, John Pope and Alan Stark.

The seven-count complaint included five charges of violating federal law prohibiting workplace discrimination, a similar count of violating the Illinois Human Rights Act, and an indemnification count against the city. The plaintiffs seek to represent a class defined as all African-Americans who have ever worked at the water department, split into three subclasses – a promotions subclass, a transfer and shift subclass, and an overtime subclass.

Murphy and Bresnahan separately filed motions to dismiss for failure to state a claim. The remaining defendants also moved to dismiss for failure to state a claim and moved to strike the class allegations.

The defense pleaded dismissal of two counts arising out of a technicality of federal law requiring violations of Section 1981 to be brought to suit under Section 1983. U.S. Judge Joan Gotschall denied the motion, but specified the counts could be later dismissed if the plaintiffs fail to satisfy the section’s requirements for bringing suit against a state actor.

The defendants also argued that the plaintiffs’ claims are subject to a two-year statute of limitations, and since all began their employment far more than two years ago, they have missed the window for their complaint. In the second amended complaint, defendants protest, plaintiffs “have failed to plead even one date of discriminatory conduct.”

Gotschall conceded that the lack of dates frustrates analysis of the statute of limitations, but reminded the defendants that a statute of limitations is an affirmative defense.

“If some or all of the discrete acts about which plaintiffs complain occurred outside the limitations period, those facts should become readily apparent in discovery, but dismissal of the [second amended complaint] is unwarranted here,” she wrote.

Gotschall did give the defendants a partial victory when she agreed that naming defendants both as individuals and in their official capacities is duplicative. She dismissed the individuals as defendants in four of the seven counts, leaving the city standing as the sole defendant on those charges. She also dismissed the fifth count, in which the plaintiffs sought to hold the individuals liable outside of their official capacities.

“No party here suggests that the individual defendants’ alleged conduct was unrelated to their status as city employees,” Gotschall wrote.

However, she upheld the count alleging a hostile work environment. While the defendants argued that the complaint does not adequately tie any of them individually to the claims of a hostile work environment, Gotschall maintained that the time to build that record is at the discovery stage.

The judge also said discovery is needed before the court can make a proper determination on the plaintiffs’ class certification. The defendants argued that the named group is too broad and varied to establish the commonalities needed to certify a class, but Gotschall retorted that the court cannot know that until a factual record is established.

Representing the plaintiffs, and seeking to serve as putative class counsel are attorneys from the firm of Henderson Parks LLC, of Chicago.

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City of Chicago Henderson Parks LLC U.S. District Court for the Northern District of Illinois

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