This case is part of a multi-court, multi-tribunal challenge brought by the plaintiffs against the City of Chicago and the Fraternal Order of Police, complaining about the promotion process within the Police Department. It demonstrates the risks, as well as the inefficiencies, of keeping too many balls up in the air at the same time. This particular part of the ease involves the claims of Carol Majeske and other white Chicago police officers (all members of the FOP) against the FOP itself, claiming that it discriminated against them in violation of 42 U.S.C. §§ 1981, 1983 and 1985(3), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(c)(l). We conclude that the district court correctly disposed of each of these claims, and we therefore affirm its judgment.
Since 1981, the FOP has been the certified exclusive collective bargaining representative for all City of Chicago police officers below thе rank of sergeant. Sections 10.1 and 10.2 of the collective bargaining agreement provides that the employer will provide equal employment opportunity for all officers and that it will not discriminate on the basis of criteria including race, color, sex, religion, age or national origin. Prior to 1989, the Chicago Police Department (CPD) had issued a general order providing that 15 percent of its promotions to detective would be on the basis of “merit” — that is, the officer’s record as a whole — and the other 85 percent would be pursuant to a promotional exam only. In February 1989, the City administered a new three-part examination for use in detective promotions, which included a written section, a multiple choice section, and an oral board.
*309 In July 1990, the City, eoneededly with no involvement by the FOP, decided not to make promotiоns solely based on raw test rankings. Instead, it took a number of steps designed to address possible racial bias against minority candidates in the promotion procedure. First, it “standardized” the test results to take race and national origin of the applicants into account and created a promotion list based on the standardized rankings. Next, the CPD amended the general order about merit promotions, increasing the percentage of candidates selected under the merit system from 15 percent to 30 percent. Using this hybrid system, it made 90 promotions in July 1990: 64 drawn from the list (of whom 42 were drawn in rank order and 22 out of rank order), and 26 under the merit system. The 26 merit promotions went to 14 white applicants, eight African-American applicants, and four Hispanic candidates.
The FOP filed two grievances on August 21, 1990, claiming that the City had violated the non-discrimination clause of the collective bargaining agreement in the 22 promotions that had been made out of rank order and the 26 merit promotions. The case was submitted to Arbitrator Anthony Sinieropi. On October 30, 1991, Sinieropi issued a decision finding that the City had violated its collective bargaining agreement with the FOP by using race as a factor in promoting detectives out of rank order. He directed the City to promote patrol officеrs to the 90 detective positions based solely on their “qualifications” and to compensate the individuals who had suffered discrimination under the challenged system. At the same time, however, Sinieropi found that the procedures used to select the 26 merit candidates did not violate the collective bargaining agreement.
On November 20, 1991, the FOP filed a third grievance, protesting the City’s increase in the percentage of slots under the merit system, which was assigned to Arbitrator Peter Meyers in December 1991. Shortly thereafter, on January 17, 1992, Meyers entered a decision and award reflecting a settlement among the parties to the dispute that had been reached outside the formal arbitral procedure. Under the settlement, the parties agreed that no more than 20 percent of future promotions to the rank of detective and youth offiсer would be “merit” promotions. Furthermore, the decision directed the City to promote 20 officers in rank order from the competitive testing list to the position of detective and eight officers in rank order from the competitive list to the position of youth officer. The award specified that no back pay would be required and that the City would not be required to demote “any meritorious detectives or youth officers promoted in 1990.” All peace officers promoted based on this settlement were white.
Majeske and her co-plaintiffs were dissatisfied with the arbitral proceedings for several reasons. Most importantly, they believed that the settlement reflected in the Meyers award was a “sweetheart deal” in which the FOP had inappropriately acquiesced in the City’s use of race as a factor in detective prоmotions. They also thought that the FOP had misrepresented the nature of the settlement in its communications to the membership. Accordingly, the Majeske plaintiffs filed a charge against the FOP before the Illinois Local Labor Relations Board (ILLRB), claiming that the FOP had breached its duty of fair representation under the Illinois Public Labor Relations Act, 5 ICLS § 315/6(d) (West 1992), when it assisted and acquiesced in the City’s use of race as a factor in the promotions in question and in its conduct during the arbitral proceedings.
On January 21, 1993, the Executive Director of the ILLRB dismissed the charge in its entirety. He made three key findings: (1) there was no evidence of intentional discrimination by the FOP during the processing of the Sinieropi grievance, (2) the FOP violated no law or rule when it decided to settle the Meyers grievance prior to formal arbitration, nor did it violate any rule by its conduct in that case, and (3) the FOP made no misrepresentations or misleading omissions of information in its communications to its members concerning the arbitrations that amounted to intentional conduct, or conduct in bad faith. The ILLRB affirmed in a decision of May 25, 1993, and the Appellate Court of Illinois, First Judicial District, Second Division, affirmed the ILLRB’s final or *310 der dismissing the unfair labor practice charges in an opinion of August 23, 1994.
The Appellate Court’s opinion contains a careful review of the underlying facts and the proceedings brought by the Majeske plaintiffs before the state tribunals. It reviewed Illinois law on the question of a union’s duty of fair representation, noting that federal court rulings on the analogous duty under the National Labor Relations Act are persuasive authority in the state courts. Citing the leading federal decision,
Vaca v. Sipes,
In this case, the Appellate Court concluded that the FOP had settled the Meyers arbitration in good faith because it had legitimate doubts over whether it could prevail in the end. Although the Majeske plaintiffs were right, insofar as they argued that a victory would have meant the elimination of the practices to which they objected, victory is never a certainty before the fact. Had the FOP lost, the Majeske plaintiffs would have had to live with a 30 percent merit rate and an imprimatur of legality on the out of rank promotion system. The Appellate Court concluded that the settlement reflected in the Meyers award was “rationally based, within the bounds of [the FOP’s] substantial discretion and, therefore, does not constitute intentional misconduct.” It also commented that “[t]he fact that all the police officers promoted to detective based on the settlement were Caucasian belies any claim that they settled the grievance with the intent to discriminate.” The court noted that the Majeske parties had failed otherwise to present evidence that the FOP intended to discriminate. Finally, it concluded that the Chicago Municipal Code, § 2-74-050 (1984), provides the City with authority to make discretionary merit promotions. Following this decision, the Majeske plaintiffs did not pursue a motion for leave tо appeal to the Illinois Supreme Court. ‘ Instead, they began to focus all their attention on their parallel federal court proceedings, to which we now turn.
Back in 1989, the very same Majeske plaintiffs, represented by the same lawyer, had filed suit in federal district court against the City of Chicago, claiming that various aspects of the promotion examination used for detective promotions were raciаlly discriminatory. In September 1992, while the state administrative unfair labor practice charges were pending, the Majeske plaintiffs added the FOP as a party to their federal lawsuit. Their “Supplementary Complaint” alleged that the FOP had agreed with the City and assisted it in the use of race as a factor in the detective promotions, by agreeing to violate the Sinicropi arbitral award, by settling the Meyers arbitration in a mannеr contrary to the Sinicropi award, and by misleading the FOP membership about their rights under the test and the Sinicropi award — the very same allegations that were wending their way through the ILLRB and the Illinois courts.
In an order of January 21, 1994, the district court dismissed the plaintiffs’ claim under 42 U.S.C. §§ 1981 and 1985(3) without prejudice and their § 1983 claim with prejudice. It also dismissed the Title VII claims without prejudice, finding that they did not state a claim that the FOP had “caused or attempted to cause” the City to discriminate against the Majeske group for purposes of 42 U.S.C. § 2000e-2(c)(3). It gave the plaintiffs an opportunity to amend their complaint to try to state a claim under 42 U.S.C. § 2000e-2(c)(1), which makes it unlawful for a labor organization to discriminate against any individual because of his race. They promptly did so, filing an amended complaint on January 31, 1994, against the FOP. This one claimed that the FOP had abandoned grievances thаt were the subject of the Sinicropi award, by choosing not to enforce that award, by allowing the City to make additional promotions from the July 1990 list, and by acquiescing in the Meyers award. It also *311 claimed that the FOP intended to help the City promote “blacks and hispanics to detective in numbers close to their applicant pools,” and to “hold down the number of white promotions.” On July 29, 1994, the district court denied the FOP’s motion to dismiss the plaintiffs’ Amended Supplemental Complaint under Rule 12(b)(6).
By this time, however, the Illinois litigation had caught up with the federal ease. On November 23, 1994, long enough after the August 23, 1994, opinion of the Appellate Court of Illinois for it to be final, the FOP filed a new motion for summary judgment arguing that the Majeske plaintiffs were precluded from litigating their Title VII claim on grounds of claim preclusion. This time the district court agreed, and in an order of March 2, 1995, the court grаnted the FOP’s motion for summary judgment on the Title VII claim. On August 30, 1995, the district court denied the plaintiffs’ Rule 59(e) motion to reconsider its March 2, 1995, order and granted the FOP’s request for an order under Fed.R.Civ.P. 54(b) directing final judgment for the FOP on all claims.
Majeske presents two principal issues on appeal: first, whether the district court erred in granting the FOP’s motion to dismiss the actions brought under 42 U.S.C. §§ 1981, 1983, and 1985(3), on the ground that they failed to state a claim, and second, whether the district court erred in concluding that the Title VII action was precluded by the prior Illinois proceedings. It is important to recall, as we evaluate these theories, that we are concerned here only with the suit against the FOP, not with the other aspects of this complex case as it may pertain to other parties.
Claims under 4.2 U.S.C. §§ 1985(3) and 1983.
A plaintiff raising a claim under § 1985(3) must allege (1) the existence of a conspiracy, (2) a purposе of depriving a person or class of persons of equal protection of the laws, (3) an act in furtherance of the alleged conspiracy, and (4) an injury to person or property or a deprivation of a right or privilege granted to U.S. citizens.
United Brotherhood of Carpenters and Joiners, Local 610, et al. v. Scott,
Majeske’s complaint alleged that “the City, under color of state law, with the аgreement and assistance of the FOP, used race and national origin as a motivating factor in Chicago police detectives’ promotions for the purpose of excluding whites, including plaintiffs, from promotion to detective on the basis of their race, in violation of plaintiffs’ right to equal protection and rights under Title VII.” Whatever this may allege about the City’s intent, it falls short of an allegation that the FOP acted with the intent tо deprive white officers of equal protection. Other pertinent allegations about the FOP’s actions suffer from the same problem:
(para. 34) the FOP and City agreed to promote from the race-based July 1990 detectives list.
(same) the FOP and City agreed to increase from 15 percent to 20 percent the race-based, so-called “meritorious” detectives’ promotions
(para. 40) [the FOP acted] wilfully or in gross disregаrd of plaintiffs’ rights
These allegations fall short of a claim that the FOP acted intentionally. Disparate impact alone does not satisfy the pleading requirements for either § 1983 or § 1985(3). *312 The district court therefore correctly dismissed this claim on the pleadings.
Claim, under 42 U.S.C. § 1981.
This claim, which the district court dismissed on the pleadings without prejudice, also founders on the “intent” requirement. Section 1981 (now codified as § 1981(a)) prohibits discrimination in the making and enfоrcement of private contracts.
Patterson v. McLean Credit Union,
A § 1981 claim may be brought against a labor organization like the FOP when “the collective bargaining agreement contains an express clause binding bоth the employer and the union not to discriminate on racial grounds,” as the FOP agreement did, and when the labor organization as the collective bargaining agent intentionally avoids asserting discrimination-based claims. See
Daniels v. Pipefitters’ Association Local No. 597,
The Title VII claim.
Last, we come to the claims brought under Title VII, which so closely track the state court proceedings we have detailed above. The district court dismissed this part of the ease under the claim preclusion branch of the law of judgments. Our analysis begins with the Full Faith and Credit Act, which provides that the “judicial proceedings” of any State “shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State.” 28 U.S.C. § 1738. As the Supreme Court recently noted in
Matsushita Electric Industrial Co. v. Epstein,
— U.S. -, -,
The fact that a judgment incorporates the results of a settlement, rather than being the result of full litigation on the merits, makes no difference for the application of § 1738. This, indeed, was the situation in
Matsushita,
where the Court expressly held that a state court judgment embodying the settlement of class action claims had to be assessed under § 1738, just like any other judgment. Furthermore, the
Matsushita
Court reiterated that § 1738 also applies even when thе state court judgment might work to bar litigation of exclusively federal claims, as the Court had held in
Marrese v. American Academy of Orthopaedic Surgeons,
We must therefore look to the law of Illinois to see what effect the Illinois courts would give to the judgments in the earlier state proceedings. This court discussed thе Illinois law of preclusion extensively in
LaSalle National Bank of Chicago v. County of DuPage,
Decisions from the Illinois Appellate Courts make it clear that Illinois applies these principles to claims addressed in administrative proceedings that are “judicial” in nature. In
Osborne v. Kelly,
It is well established that res judicatа can preclude litigation of causes of action or issues already addressed in an administrative proceeding that is judicial in nature
* * * * 4 *
Where res judicata applies, it attaches to the administrative decision, rather than to the decision of the circuit court when judicial review is sought, as long as there is no discrepancy between the two.
In this case, the parties agree that two of the three elements necessary for claim preclusion are satisfied. First, the parties are identical, and second, there has been a final judgment in a state court proceeding. The only disputed issue is one of law, which we are entitled to review
de novo:
did the two proceedings raise the same claim or cause of action, such that the federal action is barred. As this court noted in
Hagee,
The outcome here would be the same under either the “same evidence” approach or the Restatement’s “same transaction” approach. It is crystal clear from reading both the ILLRB’s opinion and the Appellate Court’s opinion that the state litigation centered on the question whether the FOP entered into the settlement with the City for the purpose of discriminating against white members of the FOP, and thаt both tribunals found no evidence to support such a claim. Majeske herself argues that the allegations in the state and the federal proceedings were identical. See Appellant’s Brief at 14, 19. How the FOP behaved, the circumstances of the Meyers settlement, the manner in which the FOP communicated with its members, its willingness (or unwillingness) to use race-based promotion criteria, were the key issues *314 in the state proceedings, and they would be the key issues in the proceeding under the “labor organization” part of Title VII, 42 U.S.C. § 2000e-2(c)(l).
We conclude that Illinois would find a suit analogous to Majeske’s Title VII action barred by claim preclusion. Following the command of the Full Faith and Credit statute, as the Supreme Court has construed it in Kremer, Marrese, and Matsushita, we therefore find that the district court correctly ruled that the Title VII action was similarly barred.
The judgment of the district court is AffiRmed in all respects.