Arthur Lewis, Jr. v. City of Chicag

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 12-2845
ARTHUR L. LEWIS, JR., et al.,
Plaintiffs-Appellees,
v.
CITY OF CHICAGO, ILLINOIS,
Defendant-Appellee.
Appeal of:
TERRENCE C. BUTLER, EUGENE PAYLOR, ANTHONY ROSS, and
GERARD D. MINNIFIELD
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 98 C 5596 — Joan B. Gottschall, Judge.
____________________
ARGUED NOVEMBER 29, 2012 — DECIDED DECEMBER 17, 2012*
____________________
Before EASTERBROOK, Chief Judge, and POSNER and
MANION, Circuit Judges.
EASTERBROOK, Chief Judge. After this suit had been pend-
ing for 14 years—indeed, after final judgment had been en-
tered—four persons sought to intervene in order to upset the
* This opinion is being issued in typescript. A printed version will
follow.
No. 12-2845 Page 2
judgment and improve their own fortunes at the expense of
other members of the class. The district court deemed the
proposed intervention untimely and denied the motion. Ap-
pellate review is deferential, see Sokaogon Chippewa Commu-
nity v. Babbitt, 214 F.3d 941, 945 (7th Cir. 2000), and we con-
clude that the district judge did not abuse her discretion in
denying the would-be intervenors’ motion. (To simplify ex-
position, we call them “the intervenors” and omit qualifica-
tions such as “would-be” or “aspiring.”)
The litigation arises from a civil-service examination ad-
ministered in July 1995 to persons who wanted to join the
Chicago Fire Department. The City concluded that scores of
89 to 100 signify high qualification and hired initially from
that group. Only in 2002 did it begin to hire (at random)
from the “qualified” group who had scored 65 to 88. Hiring
from that pool continued until 2006, when the City adminis-
tered a new examination. Plaintiffs in this suit contend that
drawing a line at 89 had an unjustified disparate effect on
black applicants and thus violated Title VII of the Civil
Rights Act of 1964.
A procedural dispute reached this court in 2000. In re
Lewis, 212 F.3d 980 (7th Cir. 2000). After holding a bench trial
in 2006, the district court concluded that the City had not
proved the justification it advanced for its selection method.
A final decision in 2007 provided relief to applicants in the
“qualified” pool who had not been hired by the Fire De-
partment. Lewis v. Chicago, 2007 U.S. Dist. LEXIS 24378 (N.D.
Ill. Mar. 20, 2007). We reversed after concluding that the
charge of discrimination had been filed with the EEOC after
the statute of limitations expired, because plaintiffs’ claim
accrued when applicants in the qualified pool were told that
the were unlikely to be hired. Lewis v. Chicago, 528 F.3d 488(7th Cir. 2008). The Supreme Court disagreed, holding that a
new claim accrued with each use of the list to hire another
group of firefighters. Lewis v. Chicago, 130 S. Ct. 2191 (2010).
No. 12-2845 Page 3
On remand, we held that the charge of discrimination was
untimely with respect to the first group of hires but timely
with respect to later hires. Lewis v. Chicago, 643 F.3d 201 (7th
Cir. 2011). Implementing that decision, the district court re-
vised the judgment to reduce from 132 to 111 the number of
class members who must be hired; under this judgment oth-
er class members who have not been hired receive damages.
Neither the plaintiffs nor the City of Chicago appealed that
decision.
The four intervenors have been working as firefighters
since 2005. Each was selected at random from the “qualified”
pool, passed the physical and completed the required train-
ing course, and entered on duty. Each was aware of the liti-
gation no later than 2005. Some of the intervenors attended
the oral argument at the Supreme Court in 2010 and the oral
argument in this court on remand in 2011. Each contends
that he thought, until recently, that he would receive extra
seniority, pension credits, or back pay in this litigation. Each
contends that he is entitled to intervene, even after judg-
ment, because not until later did he learn that class counsel
had decided not to seek any relief on behalf of persons hired
from the “qualified” pool.
The district judge thought the motion to intervene un-
timely because the intervenors knew (or readily could have
learned) in 2007 that they were no longer members of the
class. As the district judge saw things, the process used in
spring 2007 to compile a database of persons eligible for re-
lief—a database that excluded anyone who had been hired
by the Fire Department—amounted to a change in the class
definition. Only persons never hired by the Fire Department
received any benefit from the judgment entered in April
2007. An attempt to intervene five years later is much too
late, the judge thought. See, e.g., People Who Care v. Board of
Education, 68 F.3d 172, 175 (7th Cir. 1995) (people must inter-
vene promptly after they learn, or readily could have
No. 12-2845 Page 4
learned, that developments in the litigation jeopardize their
interests).
If the class definition had been modified in 2007, then the
right question to ask would concern the statute of limita-
tions, not the discretionary standard for timely intervention.
Once a suit is filed as a class action, the statute of limitations
is tolled until the district judge declines to certify a class, or
certifies a class that excludes particular persons. A decision
against certification, or a limited certification, ends the toll-
ing and the time resumes running. See Crown, Cork & Seal
Co. v. Parker, 462 U.S. 345 (1983); American Pipe & Construc-
tion Co. v. Utah, 414 U.S. 538 (1974). Resumption is automat-
ic; neither American Pipe nor Crown, Cork & Seal suggested
that it depends on anyone’s knowledge that class certifica-
tion had been denied or the scope of a class limited. The Su-
preme Court held that in this case a new claim accrues with
each use of a device that creates a disparate impact. The last
such use was in 2001; after that, all hires from the 1995 list
were made in a fashion that the class concedes is proper. So
if the tolling effect of the original class action ended in 2007,
with respect to anyone excluded from the class because al-
ready hired as a firefighter, then the intervenors (and anyone
similarly situated) had at most 300 days to complain to the
EEOC. Yet none of the intervenors has ever filed a charge of
discrimination with the EEOC, and none acted in any other
fashion within 300 days of the judgment entered in April
2007. Once the statute of limitations expired on the interve-
nors’ claims, there would be no point to intervention, be-
cause none of them would have a viable claim for relief.
Yet although the district judge stated that the class had
been modified in 2007, we cannot find an order modifying
the class definition. More than that, we cannot find an order
defining the class in the first place. Lewis and the other rep-
resentative plaintiffs moved in 1999 for the certification of a
class. The district court entered a one-sentence order grant-
No. 12-2845 Page 5
ing that motion. Despite the explicit instructions of Fed. R.
Civ. P. 23(c)(1)(B), the order did not define the class. Rule
23(c)(1)(B) reads: “An order that certifies a class action must
define the class and the class claims, issues, or defenses, and
must appoint class counsel under Rule 23(g).” The district
judge did not do any of these things—not in 1999, not ever.
(The language we have quoted is from the current version of
Rule 23(c)(1)(B), which was promulgated in 2003. The ver-
sion of Rule 23 in force in 1999 required the court to define
the class, though not to appoint class counsel.)
The plaintiffs contend that the district court must have
certified this class in 1999:
[A]ll African American firefighter applicants who took and
passed the 1995 written firefighter examination who received a
score of 65 or greater but less than 89, but who, as a result of
their test scores, have been and continue to be denied the oppor-
tunity to take the physical performance test and to be hired as
firefighters.
If that is the class, then the four intervenors were members in
1999 but dropped out in 2005 when they were hired as fire-
fighters. The language we have quoted appears in the 1999
motion (though not in any order of the district court). But
plaintiffs’ 1999 motion contains other definitions, including:
“all African American firefighter applicants who received
scores of 65 or greater but less than 89 on the 1995 written
exam”. Class counsel put a variant of the latter definition on
their web site and have used it frequently—including, ac-
cording to the intervenors, when assuring each of them that
he continued to be a member of the class after being hired in
2005.
Class counsel have used other definitions over the years,
and the district judge likewise has used varying definitions
in opinions issued in 2005, 2007, 2011, and 2012. The interve-
nors have cataloged 13 different potential definitions of the
class—all used somewhere by the judge or class counsel, but
No. 12-2845 Page 6
none appearing in a class-certification order. The class has
never been formally defined, and in the absence of an origi-
nal definition it is not possible to pin down the date of modi-
fication (if there was one). The only safe way to proceed is to
assume that the four intervenors have been members of the
class since 1999 and remain members today. They therefore
do not encounter any problem under the statute of limita-
tions, though a question about the timeliness of the motion
for leave to intervene remains.
The intervenors acknowledge knowing about the litiga-
tion no later than 2005. In 2007 the district court devised a
remedy that gave them (and other persons hired between
2002 and 2006) no relief. The intervenors say that no one told
them about this—but then no one had to. The district court
invoked Rule 23(b)(2), which covers situations in which “the
party opposing the class has acted or refused to act on
grounds that apply generally to the class, so that final injunc-
tive relief or corresponding declaratory relief is appropriate
respecting the class as a whole”. Rule 23(b)(2) does not re-
quire notice, because no one can opt out of a (b)(2) class. Nor
does Rule 23 require notice when a class action is resolved
on the merits. Although members of a (b)(3) class must be
notified of a settlement, see Rule 23(e)(4), no one is entitled
to notice of the final decision in a suit fought to the finish, as
this one was.
Members of a (b)(2) class can monitor the litigation, and
these intervenors did just that when attending oral argu-
ments in the Supreme Court and this court. They could have
asked to see the judgments entered in 2007 and 2011 but did
not. During the argument held in this court in 2011, counsel
representing the class stated that persons who had been
hired between 2002 and 2006 would not receive any relief;
that did not prompt the intervenors to act, and the district
judge was entitled to conclude that persons who had let all
No. 12-2845 Page 7
of these opportunities slide by were not entitled to intervene
in 2012.
The intervenors blame their inaction on class counsel.
They say that they were told, by counsel’s web site as well as
direct communications, that they remained members of the
class and could look forward to a benefit. (Class counsel re-
spond that three of the four nonetheless knew, well before
June 2012, when they sought to intervene, that they would
not share in the remedy.) Lest our conclusion that the re-
quest for intervention came too late set the stage for malprac-
tice litigation against class counsel, we add that intervention
would have been pointless because class members hired be-
tween 2002 and 2006 would not have received relief no mat-
ter what they, and the class counsel, did or said.
The goal of this litigation was to assist applicants injured
by the disparate effect of the “well qualified” cutoff at 89. In
2001, when the pool of persons who scored between 89 and
100 was exhausted, the violation of Title VII ceased, and the
City’s hiring process complied with Title VII. Although some
persons hired from the “qualified” pool between 2002 and
2006 might have been hired earlier had the City made offers,
beginning in 1996, to the entire pool of persons who scored
65 or above, the random nature of the process makes it im-
possible to know who would have gained as a result—and
also makes it sensible for the district judge to conclude that
class members who took a bird in hand surrendered their
opportunity to share in a recovery that, as of 2005, remained
uncertain. The City vigorously contested liability. Trial did
not occur until 2006, the initial judgment was entered in
2007, and in 2008 we held that the class loses outright. It took
a decision of the Supreme Court in 2010 to establish an enti-
tlement to relief.
Applicants hired between 2002 and 2006 suffered at most
a delay in employment, while those never hired suffered a
greater injury. The intervenors have been on the payroll
No. 12-2845 Page 8
since 2005, receiving salary and accruing seniority; the other
class members lack those benefits. Our decision in 2011 led
the district judge to find that 111 persons who had not yet
been hired are entitled to jobs that would commence in 2011
or 2012, with seniority back to 1999 (the midpoint of the time
when the City was in violation of Title VII). Giving extra
seniority to persons who had been receiving the benefits of
employment since 2005 would make these 111 (and all other
firefighters hired since 1999) worse off. Similarly, allocating
back pay to the persons hired between 2002 and 2006 would
injure other members of the class, because the pot available
for distribution is limited. The court calculated how many
African American applicants would have been hired, and
when, had selections been made at random from the outset,
and compared that with the number actually hired. This cal-
culation determined how many extra offers of employment
the Fire Department must make and how much back pay
goes to the class as a whole. A judge properly could con-
clude that the remedy should be concentrated on the never-
hired applicants rather than be shared with those who had
been enjoying salary and accruing seniority, and who might
not have been injured at all. To repeat: given random selec-
tion, the intervenors might have been hired in 2005 or later,
or not hired at all (the fate of more than 6,000 other class
members), had the City chosen from the pool of those who
scored 65 and over beginning in 1996 rather than 2001, and
thus never violated Title VII.
AFFIRMED