before applicants are removed from the eligibility list in Calumet City.
Plaintiff also argues that his situation differs from the circumstances found in the cases relied on by defendants. He emphasizes that he has not been merely denied an appointment or promotion, but that he has been deprived of an actual benefit which he already enjoyed -- his place on the eligibility list.
Plaintiff is correct that this case is factually distinguishable from the cases described above. In Webster, the court emphasized that the Board of Education is not required to appoint a candidate who had a valid certificate once that candidate comes to the head of the eligibility list or is nominated by a local committee. 599 F.2d at 800. Ratajack, in contrast, alleges that the Board in this case is required to make its appointments from the eligibility list. In other words, he alleges that placement on the eligibility list guarantees appointment when a position becomes available. Thus a place on the eligibility list represents a more definite benefit than did the principal's certificate and the eligibility list at issue in Webster.
In Petru, the City did not remove the plaintiff from the eligibility list, but rather ceased hiring fire fighters at all, and later ceased its use of the list. Ratajack's situation is different in that the eligibility list survives and, allegedly, continues to serve as the required source for appointments.
In Yatvin, the plaintiff had merely been denied appointments for which she had applied. She had not been deprived of a tangible, existing benefit such as a place on an eligibility list. Again, Ratajack's position is stronger because he does allege such a deprivation of an existing benefit.
Although plaintiff is thus correct in his argument that the cases cited by defendants are distinguishable on their facts, the Court finds that the legal principles expressed in those cases necessarily apply to this case as well. The case law holds loudly and clearly that when the position sought is not one which confers a property interest, one cannot retain a property interest in the steps taken toward achievement of that position. Plaintiff essentially argues that he has been "deprived" of a place on the eligibility list, and that a place on that list is an existing benefit because it is tantamount to appointment as a full-time police officer because there are no further discretionary steps in the hiring process. To phrase the argument in this way, however, is to make its deficiency obvious. Although plaintiff's status on the eligibility list may be tantamount to a full-time position, it still cannot confer on him any interest beyond that of a full-time position. If a full-time probationary police officer does not have a property interest in that position, plaintiff cannot have a property interest in his alleged right to that position.
Furthermore, plaintiff's claim to a property interest in his place on the eligibility list, as opposed to a claim to a property interest in the full-time position itself, is essentially a claim to a property interest in a procedure. However, there can be no property interest in procedures themselves -- if there is a property interest, it must be found in the benefit toward which those procedures are aimed. See Olim v. Wakinekona, 461 U.S. 238, 250, 103 S. Ct. 1741, 1748, 75 L. Ed. 2d 813 (1983); Archie v. City of Racine, 847 F.2d 1211, 1217 (7th Cir. 1988), cert. denied, 489 U.S. 1065, 103 L. Ed. 2d 809, 109 S. Ct. 1338 (1989); Szabo Food Service, Inc. v. Canteen Corp., 823 F.2d 1073 (7th Cir. 1987), cert. dismissed, 485 U.S. 901, 108 S. Ct. 1101, 99 L. Ed. 2d 229 (1988).
The Court concludes that the facts alleged by plaintiff do not support a claim for deprivation of a property interest.
B. Liberty Interest
Plaintiff alternatively argues that he was deprived of a liberty interest without due process of law. In order to state a claim for a deprivation of liberty, a government employee must allege (1) that his employment status was tangibly altered and (2) that the government employer injured his "'good name, reputation, honor or integrity, or impose[d] a stigma that effectively forecloses' the employee's future employment opportunities." Ratliff v. City of Milwaukee, 795 F.2d 612, 625 (7th Cir. 1986), quoting Roth, supra, 424 U.S. at 573, 92 S. Ct. at 2707.
Assuming (without finding) that plaintiff has satisfied the first part of this test, the Court finds that he has not satisfied the second part. In order to satisfy the second part, plaintiff must allege that defendants "disseminated the stigmatizing information in a manner which would reach future potential employers of the plaintiff or the community at large." Ratliff, 795 F.2d at 627. The only publication alleged by plaintiff is the communication by the Chief of Police
to the Board that plaintiff had failed to pass a background check. Plaintiff does not allege that this publication was disseminated beyond the Board or that it was likely to reach future potential employers or the community at large. Accordingly, plaintiff has not alleged the deprivation of a liberty interest.
IV. FIRST AMENDMENT
In Count II of his amended complaint, plaintiff alleges that the removal of his name from the eligibility list violated his rights of free speech and political association pursuant to the First and Fourteenth Amendments to the U.S. Constitution. A dismissal from government employment for political reasons, with certain exceptions, violates the First Amendment. See generally Branti v. Finkel, 445 U.S. 507, 100 S. Ct. 1287, 63 L. Ed. 2d 574 (1980); Elrod v. Burns, 427 U.S. 347, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976); Tomczak v. City of Chicago, 765 F.2d 633 (7th Cir.), cert. denied, 474 U.S. 946, 106 S. Ct. 313, 88 L. Ed. 2d 289 (1985); Conroy v. City of Chicago, 708 F. Supp. 927, 939-43 (N.D.Ill. 1989).
Defendants argue that plaintiff fails to allege a claim for violation of the First Amendment because he has not suffered the "substantial equivalent of dismissal." This standard comes from Rutan v. Republican Party of Illinois, 868 F.2d 943 (7th Cir.), cert. granted, 493 U.S. 807, 110 S. Ct. 48, 107 L. Ed. 2d 17 (1989), in which the court held that an employee who challenges an employment action which does not rise to the level of dismissal or its equivalent does not state a claim. Plaintiff argues that the circumstances he alleges meet the Rutan test; defendants argue that they do not.
In Rutan, the court explained that its holding was based in part on the greater suffering imposed on an employee who is dismissed as opposed to an applicant who is denied an appointment, transfer or promotion:
While we recognize that in a certain economic sense the failure to win a job may harm a person as much as the failure to keep one, we follow the plurality's approach in Wygant v. Jackson Board of Education, 476 U.S. 267, 106 S. Ct. 1842, 90 L. Ed. 2d 260 (1986). There the plurality stated that an affirmative action plan's discriminatory effects may be justified when it involves losing future employment opportunity but not when it involves losing a present position. The plurality reasoned that losing an employment opportunity is not as intrusive as losing an existing job. Wygant, 476 U.S. at 279-84, 106 S. Ct. at 1849-52 (plurality); see also Steelworkers v. Weber, 443 U.S. 193, 208, 99 S. Ct. 2721, 2729, 61 L. Ed. 2d 480 (1979). ("The [affirmative action] plan does not require the discharge of white workers and their replacement with black hires."). An employee on the job has an important stake in his position with his employer. His financial affairs and other obligations will be arranged around certain settled expectations that his paychecks will continue. The coercion and control that an employer may exercise over an employee by threat of termination is great. On the other hand, an applicant seeking employment has not arranged his affairs around any expectation of an income stream from the job he seeks. Instead of depriving him of his livelihood, a patronage system lowers his chances for receiving employment at one of many potential employers. If he is employed elsewhere, a rejected application will probably have little effect on his income.