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Several white police officers can sue their black-controlled city government, so long as the allegations in their complaint involve acts by officials amounting to “naked discrimination,” a unanimous panel for the 7th U.S. Circuit Court of Appeals ruled on Tuesday. In most such reverse discrimination cases that are allowed to be decided by a jury, the complaint arises out of local officials’ attempts to redress historical wrongs or to mitigate racial tensions via an affirmative action program. But, in this unusual case, noted 7th Circuit Chief Judge Richard Posner, no affirmative action plan was being implemented by the accused city of Markham, Ill., whose mayor is black as is a majority of the city council. Rather, Posner wrote, the complaining white officers had raised a whole laundry list of “derogatory comments” that, thanks to pre-trial discovery efforts, now “litter” the court record. Moreover, Posner emphasized that the allegations involved the denial of raises, perks, and promotions as well as the constructive discharge of one of the plaintiffs. Under such circumstances, concluded Posner, a jury should be allowed to evaluate the evidence, not a judge during a summary judgment hearing. Hunt v. City of Markham, No. 99-1331. The race discrimination charges raised by the white Markham police officers have yet to be proven to a trier of fact. And, while Markham officials could not immediately be reached for comment, they and their attorneys have denied the allegations about their conduct in numerous court papers. Only one day earlier, another panel of judges in the 7th Circuit had ruled that several dozen white officers in the Chicago police department were not necessarily victims of reverse discrimination, even though they were admittedly passed over for promotions in favor of their black and Hispanic colleagues during the late 1980′s. Majeske v. City of Chicago, No. 99-1411, 99-3639. According to that court, there was “significant” evidence to indicate historical discrimination against minority officers in the past and those city’s efforts to rectify those wrongs in its affirmative action program was justified under the circumstances. Certainly, in Majeske, there were no allegations or evidence of “naked discrimination” presented as in Markham. According to Posner, between 1993 to 1997 (when the white officers’ lawsuit was filed), Markham’s mayor and other black officials are accused of making repeated “racist” (as well as “ageist”) comments to the plaintiffs, such as that the city needed “to get rid of all the old white police officers” and “it is the blacks’ turn to self-govern in Markham, and if you are white, get out.” Two of the complaining officers during this time, Posner noted, may have been denied raises on account of their race (and age); another could have been denied a temporary promotion to sergeant for similar reasons; and a fourth may have been constructively discharged “when he quit after being told by the chief of police that he would never perform up to the mayor’s expectations.” The district court had dismissed the plaintiffs’ lawsuit and rejected its allegations largely on the ground that the derogatory comments contained therein, even if true, did not influence any adverse employment action taken at a future date. Moreover, the trial judge had argued, many of the adverse employment actions allegedly taken by Markham could be blamed on the city’s well-publicized financial woes, not racial disharmony. But, Posner sharply criticized the district judge for “overreading” past precedents limiting actionable discrimination scenarios and underestimating the importance of the alleged derogatory remarks and adverse employment actions taken against the plaintiffs in this particular case when viewed together. Instead, Posner urged a “common sense” reading of the allegations and evidence presented in such cases.

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