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DZIEWIOR v. CITY OF MARENGO

June 21, 1989

DANIEL DZIEWIOR, Plaintiff,
v.
CITY OF MARENGO, THE MARENGO FIRE & POLICE COMMISSION, GAYE ANDERSON, DORIA KELLEY, and JOHN KEENUM, in their personal and official capacities, Defendants


Stanley J. Roszkowski, United States District Judge.


The opinion of the court was delivered by: ROSZKOWSKI

STANLEY J. ROSZKOWSKI, UNITED STATES DISTRICT JUDGE

 This action comes before the court on the parties' cross motions for summary judgment. For the reasons set forth below, the court grants summary judgment in favor of the defendants.

 BACKGROUND

 The plaintiff Daniel Dziewior ("Dziewior") was an applicant for a position as a police officer with the City of Marengo. Dziewior participated in the application process and, after successfully completing a physical agility test and written and oral examinations, was placed on an "initial" or "currant" [sic] "eligible" or "eligibility" list of Marengo police officer candidates. Subsequently, Dziewior was notified by the Marengo Fire and Police Commission ("Commission") that vacancies existed on the police force and that Dziewior, if still interested, would be scheduled for a psychological test, a polygraph test, and a final physical examination. (Defendants' 12(e) Statement, para. 9). The plaintiff subsequently sat for the polygraph and psychological tests. (Defendants' 12(e), para. 10).

 After receiving the test results, the commission made up of Gaye Anderson, Doria Kelley and John Keenum, informed the defendants that as a result of his test scores he would no longer be able to take part in the selection process. (Defendants' 12(e), para. 12). The defendants demanded a hearing on the subject of his removal from consideration and he received one. (Defendants' 12(e), para. 14).

 Dissatisifed with his hearing and his removal from the selection process, the plaintiff brings a procedural due process claim, pursuant to 42 U.S.C. ยง 1983, against the defendants the City of Marengo, the Commission, and Gaye Anderson, Doria Kelley, and John Keenum in their personal capacities. The plaintiff charges the defendants with depriving him of both liberty and property without due process of law in violation of the Fourteenth Amendment. The plaintiff prays for injunctive relief ordering the defendants to hire Dziewior; and award compensatory damages in an amount including back pay, benefits, and credit for seniority from the date of eligibility to the date of hire; and damages for emotional distress; and punitive damages; fees and costs. The parties have presently filed cross motions for summary judgment, each moving the court to find the instant controversy ripe for judgment and that they are entitled to judgment as a matter of law.

 DISCUSSION

 The court will not grant any summary judgment motion unless all the pleadings and supporting documents, if any, indicate that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 2513, 91 L. Ed. 2d 202 (1986); Fitzsimmons v. Best, 528 F.2d 692, 694 (7th Cir. 1976).

 The initial burden is on the moving party to demonstrate that there is no genuine issue or question of material fact in dispute. Rose v. Bridgeport Brass Co., 487 F.2d 804, 808 (7th Cir. 1973). Once the moving party has stated that a fact is not in question, the burden shifts to the non-moving party to demonstrate that there is some question of fact or to contradict a fact and bring it into question. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986).

 Property Interest

 By now it is a well-settled proposition that one is only entitled to due process, that is notice and an opportunity to be heard, when one is deprived of a protectable "property" or "liberty" interest. A protectable property interest is defined and arises as follows:

 
the Fourteenth Amendments' procedural protection of property is a safeguard of the security of interests that a person has already acquired in specific benefits . . . To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.

 * * * *

 Property interests . . . are created and their dimensions are defined by existing rules and understandings that stem from an independent source such as state law -- rules and understandings that secure certain benefits and that support claims of entitlement to those benefits.

 Board of Regents v. Roth, 408 U.S. 564, 576-77, 92 S. Ct. 2701, 2708-09, 33 L. Ed. 2d 548 (1972). See also Bishop v. Wood, 426 U.S. 341, 344, 96 S. Ct. 2074, 2077, 48 L. Ed. 2d 684 (1976); Anderson v. City of Philadelphia, 845 F.2d 1216, 1220-22 (3rd Cir. 1988).

 The plaintiff charges that the defendants have deprived him of a property interest, but Dziewior is not entirely clear on exactly what that property interest entails. In his complaint, the plaintiff complains of a deprivation of his property interest in future employment as provided by the Rules and Regulations of the Commission. Later, in the plaintiff's memorandum opposing defendants' motion for summary judgment, the plaintiff's allegedly deprived interest is described as "a right to or interest in fair consideration for public employment, *fn1" including consideration for placement on an eligibility list." While there appears to be some drift in the plaintiff's definition of the relevant property interest, the pleadings in total seem to indicate that the ultimate interest the plaintiff is determined to protect is his interest in appointment to the Marengo Police Department. Whether the defendant expresses this interest as placement on an eligibility list the sine qua non of appointment, or a right to future employment does not matter since both phrases serve as euphemisms for the plaintiff's allegedly legitimate entitlement to appointment to the Marengo police force.

 Thus, the initial question to be addressed and answered by this court is whether Mr. Dziewior has a mere subjective or unilateral expectation of appointment to the Marengo police force, in which case he has no property interest, or a legitimate entitlement to appointment, in which case he does have a property interest. See Harris v. City of Wilmington, 644 F. Supp. 1483, 1487 (D. Del. 1986). Of course, this inquiry is an objective one and is to be determined by examining the relevant rules, regulations and understandings surrounding the defendants' hiring practice that could give rise to a mutual understanding supporting an entitlement to appointment. Particularly, the court needs to investigate the Commission's Rules and Regulations ("Rules"), its Orientation booklet and meeting and other manifestations of its hiring process. See Id. at 1488.

 The plaintiff's argument supporting the existence of a property interest in appointment to the police force is rather brief and non-specific. The plaintiff merely mentions in his briefs that his property interest arises out of the Rules and Regulations which outline the Commission's hiring procedure which culminates in a listing of applicants on an eligible roster. The plaintiff points out that Article II, Section Four of the Commission's Rules and Regulations provides a disqualified applicant the opportunity to be heard. (Defendants' 12(e), para. 13). This provision, according to the plaintiff, explicitly sets forth a legitimate claim of entitlement to fair consideration for future employment. Finally, Dziewior notes that his property interest is also implied from the defendants' consent to a hearing.

 While these are rather general arguments, the court apprehends two possible arguments in favor of the existence of the plaintiff's alleged property interest. The two arguments can be summed up as follows: First, the plaintiff could argue that the Rules and Regulations assure that once an applicant is placed on an eligibility list and a vacancy occurs, that applicant has a legitimate entitlement to appointment. Second, thanks to the hearing and notice provisions in the Rules and Regulations provided for disqualified applicants, the plaintiff has a protectable property interest in remaining an applicant, the sine qua non of appointment to the police force. The former argument is supported by the following provisions from the Commission's Rules and Regulations. Article III-A, Section 5 of the Rules and Regulations, provides, inter alia, that examinations administered to applicants are to be given in the following sequence: Examinations % of Minimum Total Passing Grade Grade Background Investigation /-- Pass or Fail Physical Agility /-- Pass or Fail Written Test 2/3 70% Oral Interview 1/3 70% Medical Examination /-- Pass or Fail

 
The background investigation may include the polygraph test and/or temperamental/psychological examination.

 (Defendants' 12(e), Ex. A).

 Furthermore, there is a provision for the preparing, posting and keeping of an "eligible roster" of candidates passing all examinations. It is from this list according to the Rules that all vacancies shall be filled.


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