Appeal from the United States District Court for the Northern District of Indiana, South Bend Division, Nos. 81 C 402, 83 C 523--Allen Sharp, Judge.
Before POSNER and FLAUM, Circuit Judges, and MAROVITZ, Senior District Judge.*fn*
The plaintiffs are several black police officers of the City of South Bend, Indiana. The defendants are the City of South Bend and various municipal officials. On November 23, 1981 the plaintiffs brought a complaint in the United States District Court for the Northern District of Indiana alleging that the defendants had discriminated against them on the basis of their race in violation of the Ninth and Fourteenth Amendments to the United States Constitution and Sections 1981 and 1983 of the United States Code. Two plaintiffs filed a separate action on November 17, 1983 alleging a violation of Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e (1983). The district court consolidated the two actions. On January 31, 1983 the plaintiffs' Ninth Amendment claims, as well as their claims based on the hiring and recruitment policies of the police department, were dismissed. Minority Police Officers Association v. City of South Bend, 555 F. Supp. 921 (N.D. Ind. 1983), aff'd in part, 721 F.2d 197 (7th Cir. 1983).*fn1 The remaining issues were tried before the district judge in June of 1985. In September of 1985 the district court ruled that the plaintiffs had failed to prove that they were entitled to relief on any of their remaining claims. The plaintiffs have appealed. We affirm.
On appeal the appellant's primary contention is that the promotion policies of the South Bend Police Department unlawfully discriminated against them on the basis of race. At the time of the filing of the complaint there were 246 officers in the department. Twenty-two officers were black and one was Hispanic. There was one black division chief, one black lieutenant, five black sergeants, eleven black corporals, and four black patrolmen.*fn2 By November of 1981 there were eleven black corporals who had been with the department long enough to be eligible for promotion to sergeant. Only two were promoted. From 1979 to 1982 fourteen whites were promoted to lieutenant and six were promoted to captain, but only one black was promoted to lieutenant. On November 10, 1981 the South Bend Police Department made a number of promotions pursuant to an "in house" promotion plan implemented in 1981.*fn3 It is these promotions that led to the filing of this suit.
The "in house" promotion plan is a three-step promotion process adopted by the city in 1981 featuring: (1) a performance evaluation; (2) an oral interview; and (3) a final decision by the Chief of Police. None of the plaintiffs ever got beyond the performance evaluation. During the performance evaluation police officers were rated on the quality of their work, judgment and common sense, initiative, knowledge of duties, safety consciousness and equipment care, appearance, attitude and dependability. The plaintiffs do not allege that the criteria employed in their performance evaluation were not job-related. Instead, they allege the racially-motivated "subjective use" of those criteria by white supervisors. Appellants' Brief at 5.
The performance evaluation element of the promotion plan was developed in 1980 and 1981 by a committee of police officers and a representative of the City's Board of Public Safety. Two black officers, including one of the plaintiffs, were members of the committee. Neither officer voiced concerns about the fairness of the promotion procedures at that time. Only performance evaluations made in August of 1981 were employed in the promotion decisions made in October and November of 1981. Sergeant Williams and Lieutenant Kyle, both of whom are black, participated in the August evaluations as evaluators. Rated officers had access to their own performance evaluations and a grievance procedure was available.
The South Bend Police Department Duty Manual contains the following provisions:
308.00 PLEDGE AGAINST DISCRIMINATION AND COERCION
"It is the policy of the City of South Bend, Indiana to provide equal opportunity in employment without regard to race, religion, color, national origin, physical handicap, age, or sex. Employment actions and activities include, but are not limited to hiring, discharging, classifying, transferring, promotion or upgrading, determining pay raises, eligibility for participation in the staff benefit program, training and re-training, assigning work tasks, tools, equipment and space. The City continuously promotes this policy through a program of positive action affecting all organizational units which are managed by, or affiliated with the City of South Bend, Indiana. Through this program the City carries out the requirements of federal executive orders, Numbers 11246 and 11375 of the Civil Rights Act of 1964, and the Equal Employment Act of 1972, and all other applicable laws, and indicates its active support of the principal of equal opportunity in employment." (City of South Bend Equal Employee Opportunity Policy.)
In September of 1981 the performance evaluation scores were ranked. Those officer scoring in the top ten percent moved on to the oral interview stage of the promotion process. Oral interviews were conducted by panels of three superior officers. Each panel member asked the same question of each candidate. The oral interview panels submitted the names of the top three candidates for each position to the Chief of Police who, in turn, submitted the candidates' names to the Board of Public Safety for final approval. Every black who made it through the performance evaluation ...