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MAJESKE v. CITY OF CHICAGO

June 27, 1990

CAROL MAJESKE, JULIE P. JOHNSON, CAROL ZANCHA, MARIE JACOBSON, NANCY BRINGE and JOHN GARGUL, Plaintiffs,
v.
CITY OF CHICAGO, LEROY MARTIN, CHARLES FORD, EDWARD BROOKS, HUBERT HOLTON, JR., and GLENN CARR, Defendants


George W. Lindberg, United States District Judge.


The opinion of the court was delivered by: LINDBERG

GEORGE W. LINDBERG, UNITED STATES DISTRICT JUDGE

 Defendants, City of Chicago, Leroy Martin, Charles Ford, Edward Brooks, Hubert Holton, Jr., and Glenn Carr, have moved to dismiss the two-count complaint of plaintiffs, Carol Majeske, Julie P. Johnson, Carol Zancha, Marie Jacobson, Nancy Bringe, and John Gargul. Plaintiffs have moved for class certification. The court now rules on both of these motions.

 The motion to dismiss the complaint will be considered first. Although the complaint is not as clear as it ought to be on this point, it appears to allege claims under Section 1981; Section 1983 based on violations of due process and equal protection; and under Illinois law for violations of the Chicago Municipal Code and the Personnel Rules promulgated thereunder and for breach of contract. See 42 U.S.C.A. §§ 1981, 1983 (West 1981); U.S. Const. Amend. XIV.

 Plaintiffs are white Chicago police officers who sat for the 1989 detectives' promotional exam. They allege various improper treatment of themselves in connection with that exam, primarily because of a scoring system that favored black and hispanic test takers over white test takers.

 Although it is difficult to discern a Section 1981 claim in the complaint, the parties have proceeded on the assumption that one is present. 42 U.S.C.A. § 1981 (West 1981). The court will address this subject first.

 Section 1981 provides in part:

 42 U.S.C.A. § 1981 (West 1981). An interesting feature of the statute in the context of this case is that it guarantees "the same right . . . as is enjoyed by white citizens." 42 U.S.C.A. § 1981 (West 1981). This, however, does not preclude relief because the Supreme Court has held that Section 1981 prohibits racial discrimination against white persons. McDonald v. Santa Fe Trail Transportation Company, 427 U.S. 273, 96 S. Ct. 2574, 49 L. Ed. 2d 493 (1976).

 The Supreme Court recently said:

 
The question whether a promotion claim is actionable under § 1981 depends upon whether the nature of the change in position was such that it involved the opportunity to enter into a new contract with the employer. If so, then the employer's refusal to enter the new contract is actionable under § 1981. In making this determination, a lower court should give a fair and natural reading to the statutory phrase "the same right . . . to make . . . contracts," and should not strain in an undue manner the language of § 1981. Only where the promotion rises to the level of an opportunity for a new and distinct relation between the employee and the employer is such a claim actionable under § 1981.

 Patterson v. McLean Credit Union, 491 U.S. 164, 109 S. Ct. 2363, 2377, 105 L. Ed. 2d 132, (1989). Plaintiffs have alleged no facts in their complaint from which it could be concluded that a promotion to detective in the Chicago Police Department "rises to the level of an opportunity for a new and distinct relation between the employee and the employer" and so have not alleged "a claim actionable under § 1981." Patterson v. McLean Credit Union, 491 U.S. 164, 109 S. Ct. 2363, 2377, 105 L. Ed. 2d 132, (1989). The Section 1981 claim in plaintiffs' complaint will therefore be dismissed.

 With respect to plaintiffs' due process claims, defendants contend that plaintiffs have not alleged a protectible property interest and so have not alleged a violation of due process. Plaintiffs in their responsive memorandum have identified the following as their protectible property interests:

 
Plaintiffs allege that they have a property interest in the established, non-discretionary criteria for promotions, set forth in the municipal code and personnel rules: the right to be ranked on the basis of their acutal [sic] scores on the basis of excellence. The CITY has no discretion to create racially adjusted "percentile" scores, nor to rank candidates in any order it chooses on an eligibility list, U.S. v. City of Chicago, 853 F.2d 572 at 576 (7th Cir. 1988).
 
Further, plaintiffs have a property right in having a record made of all parts of the examination. The CITY's customary way, and the only practical way, to record an oral board is to make an audio-video tape.

 Plaintiffs cite no authority, including the case cited above, for the proposition that the items noted are property interests protectible under the due process clause.

 Moreover, plaintiffs do not address a recent Seventh Circuit opinion, cited in the memorandum in support of defendants' motion to dismiss, in which that court stated:

 
Turning to the merits, the City contends, based on Bigby v. City of Chicago, 766 F.2d 1053 (7th Cir.1985), that [intervening appellee Thomas W.] Earth has no protectible interest in his rank on the 1979 [Chicago Police Department sergeant's eligibility] roster. In Bigby, a group of black police sergeants brought suit against the City under Title VII alleging that the City had discriminated against them by refusing to promote them to lieutenant, because they failed to achieve a qualifying score on the lieutenant's examination which they contended was racially biased. A group of white and hispanic police sergeants sought and were allowed to intervene in the suit on the ground that it was not "job-related" and therefore violated the intervenors' rights under the Due Process Clause of the Fourteenth Amendment. The district court after argument agreed that the exam was discriminatory and ordered the immediate promotion of eleven black sergeants to lieutenant. However, the court refused to order promotion of the intervenors because, though the examination was invalid under Title VII, it was not arbitrary or capricious and so did not warrant relief under the Fourteenth Amendment. The intervenors appealed. We held that the intervening sergeants had neither a property nor liberty interest in a fair promotional exam or in "the rank, which they have not yet attained, of lieutenant." Id. at 1056. One passage in Bigby is particularly instructive here:
 
"The promoting officials are authorized to choose among the highest-rated applicants, and no criteria are provided for that choice. See Ill.Rev.Stat.1981, ch. 24, para. 10-1-13; Chicago Municipal Code para. 25.1-5(5). Construing the counterpart provision in the statute governing the police forces of smaller municipalities, McCoy v. Board of Fire and Police Comm'rs, 79 Ill. App. 3d 742, 744, 35 Ill. Dec. 70, 72, 398 N.E.2d 1020, 1022 (1979), holds that 'the promotion of a patrolman to sergeant is one of discretion,' so that the plaintiff 'had no vested right to promotion.' The same is true of promotion from sergeant to lieutenant. Indeed it is more strongly true, since discretionary factors loom larger as one moves up on a hierarchy. Promotion to lieutenant's rank is not a matter of right and is not governed by fixed rules which if complied with automatically entitle the applicant to promotion. 'To have a property interest . . . a person . . . must have more than a unilateral expectation of it. He must instead have a legitimate claim of entitlement to it.' [citation omitted]"
 
Bigby, 766 F.2d at 1057.
 
As we explained in Bigby, Illinois law does not create an entitlement to promotion, because Ill.Rev.Stat.1981, ch. 24, para. 10-1-13 and Chicago Municipal Code § 25.1-5 give the promoting authorities unfettered discretion to choose from among the five highest rated applicants for each available promotion. See also Miller v. Henman, 804 F.2d 421 (7th Cir.1986) (when there are no binding substantive criteria, when a decision cannot be "wrong," there is no constitutionally protected property interest.) Thus, even assuming that Earth was the 56th highest ranking white male, it would be proper for the City to promote any one of the four officers other than Earth who were recommended for promotion.
 
. . . Nothing in the applicable statute or rule creates this alleged right to a particular roster ranking sufficient to constitute a "property" interest in the constitutional sense. As roster rankings are based, in part, on subjective, discretionary performance ratings, and a candidate for promotion has no legal "right" to a favorable performance rating from his superiors ( Bigby, 766 F.2d at 1056), roster rankings are dependent upon the superior's perception of a candidate's performance at a given time and are at best uncertain. Because an officer cannot be assured that he will achieve a particular ranking on a given promotional roster, we fail to understand how he can assert that a particular ranking is "securely and durably" his under state law. See Yatvin v. Madison Metro. School Dist., 840 F.2d 412, 417 (7th Cir.1988). . . . Neither does an entitlement attach to a particular roster position by virtue of publication of the roster. Earth has neither identified nor cited any statute, rule or regulation that might be properly construed as creating a binding right to or property interest in a roster position, or as a promise that the City will not revise ranks after publication.
 
. . . .
 
. . . The message from Bigby and under Illinois law is clear: a roster ranking may create an expectation of promotion, but an officer has no entitlement to a particular roster position or to promotion. Neither Illinois law nor the Chicago Municipal Code entitle Earth to the challenged promotion much less to remain as the 56th highest ranking white male. We hold that appellant Earth was not deprived of a property interest when Gandurski was selected for promotion.

 United States v. City of Chicago, 869 F.2d 1033, 1036-38 (7th Cir. 1989). This passage, quoted at length because of its obvious relevance to the issue before this court, shows that, under prior decisions of the Seventh Circuit, plaintiffs have not alleged a property interest protectible under the due process clause of the Fourteenth Amendment. The due process claims in plaintiffs' complaint will therefore be dismissed.

 Defendants argue that plaintiffs' equal protection claims should be dismissed because plaintiffs have failed to allege facts sufficient to show that they have standing to raise this issue. Specifically, defendants contend that the allegations are insufficient to show that plaintiffs were injured by the alleged wrongful acts of defendants in that they do not allege that plaintiff Gargul (who took the oral portion of the test) would not have been among the first promoted from the list and do not allege that the remaining plaintiffs would have been among the 619 officers advancing to the oral portion of the test if defendants had not performed the acts allegedly violative of plaintiffs' right to equal protection. It is not possible to say that Gargul's ranking on the eligibility list compiled based on the results of the examination in question will be so high as to have no promotional significance; nor is it possible to say that the other plaintiffs' rankings on the eligibility list will be so low as to have no promotional significance. The equal protection claims of the complaint will not be dismissed on the ground that plaintiffs lack standing.

 In Count II, plaintiffs allege state law claims against defendant City of Chicago for failure "to follow its own laws, ordinances and Personnel Rules promulgated pursuant to the ordinances, contained in Exhibit A and B hereto" and for breach of a contract allegedly created by those ordinances and Personnel Rules. The City contends that both of these claims in Count II should be dismissed.

 With respect to the claim that the City failed to follow its own ordinances and Personnel Rules, the City's contention is not that no such cause of action could exist but rather that in this case the discretion lodged in the City was ...


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