McCormick, Donald v. City of Chicago ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-2365
Donald McCormick,
Plaintiff-Appellant,
v.
City of Chicago, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 95 C 2028--Charles R. Norgle, Sr., Judge.
Argued June 6, 2000--Decided October 16, 2000
Before Bauer, Manion, and Williams, Circuit Judges.
Williams, Circuit Judge. Donald McCormick sued
the City of Chicago, and two individual
defendants, Sergeant Richard Banaszkiewicz and
Dr. Jack Leong ("Individual Defendants") for
discrimination under 42 U.S.C. sec. 1983 and 42
U.S.C. sec. 1981. After allowing McCormick to
amend his complaint twice in order to allege
facts sufficient to show municipal liability, the
district court held a hearing and denied
McCormick the opportunity to amend his complaint
for a third time. Ultimately, the district court
dismissed McCormick’s municipal liability claim.
Following the dismissal of the claims against
the City, McCormick and the defendants attempted
to reach a settlement agreement as to the
remaining claims. In light of the settlement
negotiations, on June 30, 1998, the district
court dismissed the case with leave to reinstate
within 60 days. Although the parties reached an
agreement in principle, the Fraternal Order of
Police ("FOP"), whose consent was a condition of
the agreement, refused to agree to the
settlement. McCormick abandoned efforts to
renegotiate the settlement on November 18, 1998
and filed a motion to reinstate claims against
the Individual Defendants on December 11, 1998.
The court denied the motion to reinstate and
McCormick now appeals both the dismissal of his
municipal liability claim and the denial of his
motion to reinstate his claims against the
Individual Defendants. For the reasons set forth
below, we reverse in part and affirm in part.
I
Donald McCormick was injured while on duty as a
Chicago police officer when he slipped on the icy
pavement and fell. At that time, Banaszkiewicz
was McCormick’s immediate supervisor. Despite the
fact that McCormick filed an "injured on duty
form," Banaszkiewicz, who is white, refused to
authorize injured on duty status ("IOD status")
for McCormick. McCormick asserts that the
motivation for this refusal was Banaszkiewicz’
racial hostility toward plaintiff, who is
African-American. McCormick claims that at the
time he was injured, Banaszkiewicz made it very
clear that because McCormick was African-
American, Banaszkiewicz did not believe
McCormick’s story about being injured on the job
and that as McCormick’s supervisor, he would do
everything in his power to ensure that McCormick
did not receive IOD status. In fact, McCormick
reported that Banaszkiewicz even said to him,
"I’ll get your black ass off this job yet."
McCormick remained off work for one month and
returned briefly in June 1993, until he was
informed by his physician that he was physically
unable to work. He submitted his doctor’s written
recommendation to Dr. Leong, a police department
physician, who rejected the recommendation and
without performing any medical examination,
refused to rate McCormick as unfit for duty.
McCormick charges that Leong’s refusal was also
motivated by racial animus. Leong ordered
McCormick back to work and "made assertions
indicative of his general belief that African-
American patrolmen were more likely to feign or
exaggerate work related injuries." Specifically,
Leong told McCormick, "You blacks are all the
same. Listen, I’m going to have the department
fire you for insubordination." When McCormick
protested and reported his intent to file a
grievance, Leong added, "You’ll be fired first."
According to McCormick, Leong never asserted a
medical reason to support his refusal to rate
McCormick unable to perform his duties.
As a result of Banaszkiewicz’ and Leong’s
actions,/1 McCormick ultimately resigned from
the police force. Later that year, on October 29,
1993, McCormick requested reinstatement to the
Chicago Police Department. The City granted his
request, however McCormick was not reinstated to
his former position. Consequently, McCormick lost
all seniority and benefits which would have
inured to him under the terms of his original
contract with the department.
In his Second Amended Complaint, McCormick
alleged that by maintaining an express policy
against racial discrimination and not vigorously
enforcing it, the City encouraged and condoned
acts and omissions of its highest policy-making
officers who have allowed "a widespread custom of
allowing white police officers, in predominately
white districts, to engage in individual acts of
discrimination against African-Americans, without
fear of vigorous and effective enforcement of
City anti-discrimination policies." In
particular, McCormick alleged that Banaszkiewicz
engaged in a pattern of treating African-American
officers worse than white officers and
"denigrating, belittling, and mistreating
African-American officers under his supervision
while at the same time, not treating white police
officers" similarly. He reported that on one
occasion, Banaszkiewicz was caught by the watch
commander engaging in acts of sabotage against
equipment used by African-Americans and that
despite repeated and well-publicized reports of
racially motivated acts by Banaszkiewicz, the
City allowed him to retain a supervisory postion
and to harass and harm African-American officers,
including McCormick. McCormick also claims that
Banaszkiewicz’ supervisors, the City Clerk, and
other City officials knew about his conduct and
that their failure to act served as further
encouragement.
The procedural history of this litigation is
complicated, but in no way unusual in a case of
this nature. After permitting McCormick to amend
his complaint for the third time, on October 29,
1997, the district judge concluded that McCormick
had not alleged facts showing a municipal custom
or practice of discrimination against African-
American officers who were injured on duty and
therefore dismissed McCormick’s claims against
the City. The court found that "McCormick [did]
not plead facts demonstrating that the City was
the moving force behind the alleged
discrimination" and he "failed to come forward
with facts establishing an ’affirmative link’
between a discriminatory municipal policy and
[one of Individual Defendants’] behavior."
However, the district judge did offer McCormick,
who was pro se at the time, the chance to file a
third amended complaint, as long as he did so
prior to November 21, 1997. The court informed
McCormick that if he failed to submit his third
amended complaint by that date, his claims
against the City would be dismissed with
prejudice and the court would enter judgment in
the City’s favor.
On January 5, 1998, McCormick, represented by
legal counsel, filed a motion for leave to file
another amended complaint. He sought to add a
paragraph which stated:
At all times the City of Chicago has afforded
disparate treatment on account of race to its
police officers claiming to have been injured on
duty. The City has disapproved claims of African-
American police officers for injury-on-duty
status at a greater rate than the claims of
similarly situated white officers. The difference
in the approval rates for African-American and
white police officers is so great as to give rise
to an inference of intentional discrimination.
The district judge denied this motion./2 In
ruling, the judge noted that "from the Court’s
perspective this is a tired, old case. And when
it originally came before the Court, it appeared
to be a relatively simple case for the Court to
deal with. . . . This amendment would totally
change the nature of the case, if the Court were
to allow this amendment."
In the meantime, the Individual Defendants filed
answers to McCormick’s Second Amended Complaint,
and the litigation proceeded as to the claims
against them. By January, after some discovery,
McCormick and the Individual Defendants were
actively engaged in settlement discussions. The
Individual Defendants initially reached a
settlement agreement with McCormick, and on June
30, 1998, the district judge issued an order
dismissing McCormick’s case with leave to
reinstate within sixty days. Under the terms of
the agreement, McCormick was supposed to submit
a letter noting the Fraternal Order of Police’s
("FOP") consent to the settlement by July 30,
1998. McCormick missed this deadline and later
informed the court that the FOP refused to
approve the settlement. Therefore, the agreement
was never finalized./3 However, instead of
seeking reinstatement immediately, McCormick did
not file a motion to reinstate until December 11,
1998; months after the deadline imposed by the
court in June. After several filings on the
subject, the district judge denied McCormick’s
motion to reinstate as both untimely and without
merit.
II
A. Motion to Dismiss
McCormick maintains that in dismissing his
claims against the City, the district judge
improperly applied a heightened pleading standard
to his municipal liability claim. As an initial
matter, the City contends that we need not even
reach this issue. The City argues that because it
entered into settlement negotiations concerning
claims against both the City and Individual
Defendants, dismissal of the complaint in light
of those negotiations covers both the municipal
liability and individual liability claims. This
argument misses the mark. The fact that the City
was still a party to settlement negotiations does
not necessarily mean that the court’s June 30,
1998 order (dismissing with leave to reinstate),
somehow included the municipal liability claim.
That claim was dismissed by the court on October
29, 1997 and again on January 12, 1998 when the
court denied plaintiff’s motion to modify the
October 29 order. Since the court entered a final
judgment for defendants on March 5, 1999 and
McCormick has filed a timely appeal, he may
challenge all of the court’s prior rulings,
including the court’s dismissal of his municipal
liability claim. See Head v. Chicago Sch. Reform
Bd. of Trustees, No. 99-3408, 2000 WL 1206482, at
*2 (7th Cir. Aug. 25, 2000). We review the
district judge’s decision to grant a motion to
dismiss de novo. See Payton v. Rush-
Presbyterian-St. Luke’s Med. Ctr., 184 F.3d 623,
625 (7th Cir. 1999).
The Supreme Court has made it very clear that
federal courts must not apply a heightened
pleading standard in civil rights cases alleging
sec. 1983 municipal liability. See Leatherman v.
Tarrant County Narcotics Intelligence and
Coordination Unit, 507 U.S. 163, 164 (1993). To
survive a motion to dismiss, "a pleading must
only contain enough to ’allow the court and the
defendant to understand the gravamen of the
plaintiff’s complaint,’" Payton, 184 F.3d at 627
(citing Doherty v. City of Chicago, 75 F.3d 318,
326 (7th Cir. 1996)). The task for the court in
these cases then is to determine exactly what is
"enough."
To allege that a municipal policy has violated
an individual’s civil rights under sec. 1981 or
sec. 1983, McCormick needed to allege that (1)
the City had an express policy that, when
enforced, causes a constitutional deprivation;
(2) the City had a widespread practice that,
although not authorized by written law or express
municipal policy, is so permanent and well
settled as to constitute a custom or usage within
the force of law; or (3) plaintiff’s
constitutional injury was caused by a person with
final policymaking authority. See McTigue v. City
of Chicago, 60 F.3d 381, 382 (7th Cir. 1995).
McCormick chose to rely upon the second of these
three options.
According to McCormick, the City was aware of
the discriminatory policy (as practiced by
Individual Defendants) against African-Americans
who were injured on the job. McCormick’s pro se
complaint contains various allegations against
the City. Most directly aimed at the City is
McCormick’s claim that the City encouraged and
condoned acts and omissions of its highest
policy-making officers who have allowed "a
widespread custom of allowing white police
officers, in predominately white districts, to
engage in individual acts of discrimination
against African-Americans, without fear of
vigorous and effective enforcement of City anti-
discrimination policies." In his submissions to
the court, McCormick also cited two specific
reasons he thinks the City should be held liable,
(1) the City Clerk has been the subject of
employment discrimination lawsuits and complaints
and (2) Banaszkiewicz was caught tampering with
another African-American officer’s computer.
The district judge rejected McCormick’s
arguments and found the language in his complaint
lacking. He concluded that McCormick’s complaint
included only "boilerplate allegations of a
discriminatory municipal policy, entirely lacking
in any factual support that a municipal policy
does exist." In addition, the court specifically
rejected McCormick’s argument concerning
Banaszkiewicz’ tampering with computers as a
single incident which merely shows that he "may
have racial animus toward African-Americans," but
does not indicate that City policymakers were
aware of the officer’s conduct and acquiesced.
Plaintiffs’ counsel, the defense bar, and
district courts continue to struggle with this
and other courts’ pronouncements as to exactly
what a plaintiff bringing a municipal liability
suit must plead to survive a motion to dismiss--
and with reason. In Jackson v. Marion County, 66
F.3d 151, 153-54 (7th Cir. 1995), we held that a
plaintiff "need not plead facts; he can plead
conclusions." This of course suggests a clear
rule in favor of notice pleading. Such a rule
comports with Leatherman, 507 U.S. at 164, but
may appear confusing in light of our holdings in
other cases like Kyle v. Morton High School, 144
F.3d 448, 455 (7th Cir. 1998). In Kyle, we
considered the language and the facts provided in
the plaintiff’s complaint and concluded that the
plaintiff could not state a claim by simply
attaching a "’bare conclusion to the facts he
narrates.’" Id. (internal citation omitted).
Here, there is no question that McCormick has
included in his complaint a number of conclusions
designed to get him over the pleading bar for his
municipal liability claim. The smattering of
phrases like "highest policymaking officers" and
"widespread custom" throughout McCormick’s
complaint is a common practice designed to ensure
that the complaint will withstand scrutiny under
liberal notice pleading. Some would assert that
the inclusion of this language should be
"enough." Others suggest that more is needed;
that the facts included in the complaint must
lead to the legal conclusions drawn. We believe
that it is the former view, and not the latter,
that Leatherman and its progeny support.
In Leatherman, the Supreme Court reminded us
that the Federal Rules of Civil Procedure, as
currently formulated, do not permit the courts to
dismiss sec. 1983 municipal liability claims for
lack of factual specificity under Rule 12(b)(6):
"[F]ederal courts and litigants must rely on
summary judgment and control of discovery to weed
out unmeritorious claims sooner rather than
later." Leatherman, 507 U.S. at 168-69. This
court in Bennett v. Schmidt, 153 F.3d 516, 518
(7th Cir. 1998), made it rather plain what it
takes to survive a motion to dismiss and
announced that we do not sanction a heightened
pleading standard of any sort in discrimination
cases. On more than one occasion, we have held
that "plaintiffs need not ’allege all, or any of
the facts logically entailed by the claim . . .
A plaintiff does not have to plead evidence. . .
. [A] complaint does not fail to state a claim
merely because it does not set forth a complete
and convincing picture of the alleged
wrongdoing." Payton, 184 F.3d at 626-27 (citing
Bennett, 153 F.3d at 518) (internal citation
omitted).
This standard is to be vigilantly applied when
the plaintiff is acting pro se and has drafted
his own complaint, as is the case here. It is the
well-settled law of this circuit that pro se
complaints are to be liberally construed and not
held to the stringent standards expected of
pleadings drafted by lawyers. See Wilson v. Civil
Town of Clayton, Ind., 839 F.2d 375, 378 (7th
Cir. 1988); Sizemore v. Williford, 829 F.2d 608,
610 (7th Cir. 1987); Caldwell v. Miller, 790 F.2d
589, 595 (7th Cir. 1986). Therefore, a pro se
civil rights complaint may only be dismissed if
it is beyond doubt that there is no set of facts
under which the plaintiff could obtain relief.
See Shango v. Jurich, 681 F.2d 1091, 1103 (7th
Cir. 1982).
Of course, where a plaintiff alleges facts that
establish that a defendant is entitled to prevail
on a motion to dismiss, the court may find that
the plaintiff has plead himself out of court.
Bennett, 153 F.3d at 519. That is not the case
here. McCormick’s complaint does not leave out
operative facts which form the basis of his claim
as the plaintiff did in McTigue, 60 F.3d at 382
(7th Cir. 1995) (finding complaint deficient for
its failure to include a factual basis describing
the bias plaintiff alleged) or in Kyle, 144 F.3d
at 457 (dismissing complaint where plaintiff
simply recited rumor that he was terminated for
"political and advocacy reasons"). In those
cases, the plaintiffs left out facts necessary to
give the defendants a complete understanding of
the claims made against them. The defendants in
those cases had no notice of the crux of the
plaintiff’s charges. The factual cause of
McCormick’s claim is clear and the strong
language of Bennett and the guidance offered in
cases like Wilson and Sizemore indicate that
McCormick’s case against the City should not have
been dismissed.
The language contained in McCormick’s second
amended complaint, while conclusory, is
sufficient to put the City on notice of his claim
against it. The conclusions are buttressed by
facts alleging wrongdoing by the City, as
required by Monell v. Department of Social
Services, 436 U.S. 658, 690 (1978). McCormick
alleges that the City "encouraged and condoned
acts [Banaszkiewicz’ and Dr. Leong’s
discriminatory treatment of him] and omissions
[failing to provide a process for McCormick to
appeal those decisions or to stop Banaszkiewicz
from discriminating against African-Americans] of
its highest level policy-making officers" which
resulted in a "widespread custom of allowing
white police officers" to discriminate against
African-American officers without fear of
punishment. He also claims that the City
(specifically the City Clerk) ignored the "well
publicized racially motivated acts" of
McCormick’s supervisor Banaszkiewicz. If true, as
we must assume these facts are, we find nothing
in the law to suggest that McCormick would not
have a valid municipal liability claim against
the City./4
Taking into account the liberal pleading
standard for pro se plaintiffs, we are convinced
that the district judge erred in dismissing
McCormick’s municipal liability claims in his
second amended complaint. Contrary to the
district judge’s opinion, McCormick does not need
to plead facts "demonstrating that the City was
the moving force behind the alleged
discrimination." In fact, the Federal Rules of
Civil Procedure provide that "malice, intent,
knowledge and other condition of mind of a person
may be averred generally." Fed. R. Civ. P. 9(b).
McCormick alleged that the City knew about
Banaszkiewicz’ and Dr. Leong’s discriminatory
actions and encouraged it. In announcing its
decision, the district judge relied on cases
resolved by a jury verdict, not at the motion to
dismiss stage./5 In those cases, plaintiff’s
burden was to prove by a preponderance of the
evidence that the City was liable. Here,
McCormick’s burden was simply to allege facts
that would give the City notice of his municipal
liability claim. He met that burden and should
have been permitted to proceed against the City.
Therefore, we find that the district court erred
in granting the City’s motion to dismiss
McCormick’s municipal liability claim.
B. Motion to Reinstate
Next McCormick argues that the district court
erred when it denied his motion to reinstate.
McCormick claims that he did not give up attempts
to renegotiate the settlement until November 18,
1998, only two weeks before he filed his motion
to reinstate. However, the City claims McCormick
knew that he would be unable to meet the
conditions set forth in the agreement and that
settlement negotiations were in trouble on July
30, 1998, when he was unable to obtain the
consent of the FOP. As such, McCormick had ample
opportunity to seek reinstatement of the case
within the sixty days allotted or to ask for an
extension of time to reinstate.
The district judge agreed with the City and
found that McCormick’s motion to reinstate was
both inexcusable and untimely. He noted:
Here plaintiff knew on July 30th, that there was
a problem because he did not comply with the
agreement. Yet, he made no effort to take
advantage of the court’s leave to reinstate. . .
. Considering the amount of time McCormick had to
reinstate after he became aware of the problem
with the settlement, and the resulting prejudice
to the remaining individual defendants . . . the
court finds that McCormick failed to file within
a reasonable time.
(Order, Mar. 2, 1999.) Since McCormick appeals
only the denial of the motion to reinstate his
case against the Individual Defendants and not
the court’s dismissal of his claims against them,
our review is "strictly limited to determining
whether the district court’s denial of the Rule
60(b) motion constituted an abuse of discretion."
Kagan v. Caterpillar Tractor Co., 795 F.2d 601,
607 (7th Cir. 1986)./6 A court has abused its
discretion when "no reasonable person could agree
with the district court." Nelson v. City Colleges
of Chicago, 962 F.2d 754, 755 (7th Cir. 1992).
We believe the district judge acted reasonably.
Rule 60(b) permits the court to relieve a party
from an order on the grounds of mistake,
inadvertence, excusable neglect, newly discovered
evidence, fraud or "any other reason justifying
relief from the operation of the judgment." Fed.
R. Civ. P. 60(b). It is very well established
that Rule 60(b) relief is "an extraordinary
remedy and is granted only in exceptional
circumstances," Dickerson v. Board of Educ. of
Ford Heights, Ill., 32 F.3d 1114, 1116 (7th Cir.
1994) (internal citation omitted), and we have
described a court’s decision not to reinstate a
case under Rule 60(b) as "discretion piled on
discretion." Tolliver v. Northrop Corp., 786 F.2d
316, 319 (7th Cir. 1986). Therefore, we must let
the district court decision not to reinstate
stand unless we find that there was a substantial
danger that dismissal of plaintiff’s claims was
fundamentally unjust. Dickerson, 32 F.3d at 1117.
The City says that the reason McCormick offers
as an excuse for seeking reinstatement three
months after the deadline, mutual mistake, is
insufficient. We agree and find unavailing
McCormick’s first argument that both he and the
City mistakenly believed that the FOP would
consent to the agreement and that therefore the
court should have granted Rule 60(b) relief. When
McCormick agreed to condition enforcement of the
settlement agreement on getting consent from the
FOP, he knew that there was a possibility,
however slight, that the FOP would not acquiesce.
Despite that risk, McCormick decided to forgo the
risks and costs that a trial would involve, have
his case dismissed and enter into a settlement
agreement.
There was no mistake involved here. If both
parties had been 100 percent sure that the FOP
would consent to the agreement, the clause
conditioning the settlement on that consent would
have been neither necessary nor even considered.
Instead, the parties saw the need to obtain FOP
consent and conditioned the settlement on getting
that consent. The very fact that they did this
suggests that both parties had to know that the
possibility existed that the FOP would withhold
its consent. We do not consider it a mistake that
neither party sought to include a clause that
would save the settlement agreement in the event
this happened (and if anything, certainly not a
mutual mistake). Given that implementation of the
settlement was dependent upon the FOP giving its
consent, McCormick’s attorney had a particularly
strong incentive to make sure that his client was
protected in the event the FOP decided it could
not agree that McCormick’s seniority should be
restored. This court has held before that
"neither ignorance nor carelessness on the part
of the litigant or his attorney provide grounds
for relief under Rule 60(b)(1)." Kagan, 795 F.2d
at 607 (citing Ben Sager Chem. Int’l v. E.
Targosz & Co., 560 F.2d 805, 809 (7th Cir. 1977).
We agree with the Second Circuit that "when a
party makes a deliberate, strategic choice to
settle, she cannot be relieved of such a choice
merely because her assessment of the consequences
was incorrect." United States v. Bank of New
York, 14 F.3d 756, 759 (2d Cir. 1994) (affirming
district court’s finding that plaintiff’s
erroneous interpretation of a statute did not
constitute mistake, inadvertence, surprise, or
excusable neglect under Rule 60(b)). Here,
McCormick characterizes the FOP’s refusal to
consent as an "unexpected development." That may
be true, but this does not entitle McCormick to
Rule 60(b) relief.
Equally unpersuasive is McCormick’s suggestion
that the district judge erred in finding his
motion untimely. While complete repudiation of a
settlement agreement would suffice to justify
Rule 60(b) relief, that is not the case presented
here. In this case, the settlement agreement fell
apart because an express condition of the
agreement was not met. And, like the plaintiffs
in Neuberg v. Michael Reese Hosp. Found., 123
F.3d 951, 954 (7th Cir. 1997), McCormick knew
that the FOP would not consent to the settlement
agreement and that he and the City had reached an
impasse long before he sought reinstatement. In
Neuberg, the plaintiffs waited 21 months
(admittedly longer than McCormick waited here)
before filing a motion to reopen the case even
though they knew of the stalemate between the
parties./7 Neuberg, 123 F.3d at 955. While the
facts differ slightly in this case (the district
judge in Neuberg did not give plaintiffs 60 days
to reinstate the case after the parties reported
having reached a settlement agreement), we think
the principle is the same.
The district court offered McCormick a sizeable
window of opportunity to reinstate his case if he
thought the settlement agreement was in jeopardy.
Rather than reinstate the case and continue
negotiations under the district judge’s watchful
eye, he chose to wait to take action until well
after the time allotted had passed. The district
court decided that McCormick’s excuse that his
counsel did not abandon efforts to renegotiate
the settlement until December was just not good
enough. In light of the facts and the procedural
history of this litigation, this was not an
unreasonable conclusion to reach. A conscientious
attorney would have sought reinstatement as soon
as she learned that a condition of the settlement
agreement would not be met, or at least as soon
as she realized that the time provided for
reinstatement was about to elapse. McCormick’s
counsel failed to do this. As such, given the
amount of time that elapsed before McCormick
sought to reinstate the case, it was not
unreasonable to hold that his motion was
untimely.
Therefore, we find that the district judge did
not err in denying McCormick’s motion to
reinstate.
III
For all of the reasons set forth above, we
REVERSE the district court’s decision to dismiss
McCormick’s municipal liability claim, REMAND that
claim to the district court for further
proceedings, and AFFIRM the district court’s
decision denying McCormick’s motion to reinstate.
/1 McCormick asserts that because Leong’s medical
judgment and refusal to give McCormick IOD status
was granted so much deference, it was in essence
unreviewable. As such, McCormick considers Leong
a final decision-maker. He also states that
because the City did not provide a means for him
to appeal Banaszkiewicz’ decision jeopardizing
McCormick’s health and safety (presumably by
making him remain on the job), Banaszkiewicz
should be considered a final decision-maker as
well.
/2 On December 4, 1997, McCormick’s new attorney
informed the court that he had just learned about
the October order dismissing McCormick’s suit and
he filed a motion to modify the order seeking
more time to amend the complaint. The court
initially took the motion under advisement but
ultimately denied McCormick’s motion to modify
the order at the same time he denied McCormick’s
motion for leave to amend.
/3 The proposed settlement agreement contained a
provision requiring consent of the FOP because
one of the remedies McCormick sought was an
adjustment to his seniority and the FOP’s
collective bargaining agreement governs
adjustments to seniority. The City argued that
without the FOP’s consent, there is no way to
restore McCormick’s seniority and provide
McCormick the remedy he was seeking.
/4 The district court suggests that McCormick’s
inclusion of facts describing the single incident
involving Banaszkiewicz’ tampering with an
African-American co-worker’s computer and the
City Clerk’s receipt of other complaints of
discrimination somehow works to defeat his claim.
On the contrary, the language in McCormick’s
complaint, as we have indicated above, expressly
alleges a widespread custom of discrimination by
the City. McCormick did not defeat his claim
simply because he referenced these examples.
/5 See Hubert v. Wilhelm, 120 F.3d 648, 656 (7th
Cir. 1997) (affirming jury verdict and district
court’s denial of post-verdict motion for
judgment as a matter of law); McNabola v. Chicago
Transit Auth., 10 F.3d 501, 511 (7th Cir. 1993)
(affirming jury verdict).
/6 McCormick argues that Rule 60(b) does not apply
to this case because he sought reinstatement
before the court’s Rule 58 final judgment was
entered. Rule 60(b) permits the court to relieve
a party from "a final judgment, order or
proceeding." There is nothing in the law to
suggest that Rule 60(b) applies only to decisions
rendered final by entry of a Rule 58 judgment. By
its terms, it applies to final orders and final
proceedings. In fact, in Otis v. City of Chicago,
29 F.3d 1159, 1165 (7th Cir. 1994), we held that
in cases where the district judge has entered a
conditional dismissal in light of a reported
settlement, "once the time to satisfy the
condition has expired, the order is ’final’ by
any standard other than one making the entry of
a Rule 58 judgment indispensable."
/7 This court has held that a nine-month delay in
seeking reinstatement of a three year-old case
after entry of settlement was not reasonable. See
Lyles v. Commercial Lovelace Motor Freight, Inc.,
684 F.2d 501, 504 (7th Cir. 1982).