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SUNDSTROM v. VILLAGE OF ARLINGTON HTS.

June 16, 1993

ELMER SUNDSTROM, Plaintiff,
v.
VILLAGE OF ARLINGTON HEIGHTS, BOARD OF FIRE AND POLICE COMMISSIONERS OF VILLAGE OF ARLINGTON HEIGHTS, ROBERT SCHULDT, HAROLD POLLARD and BRUCE RODEWALD, Defendants.



The opinion of the court was delivered by: MILTON I. SHADUR

 Lieutenant Elmer Sundstrom ("Sundstrom") of the Fire Department ("Department") of the Village of Arlington Heights ("Village") claims that defendants--Village itself, its Board of Fire and Police Commissioners ("Board") and three individuals--denied Sundstrom's promotion to the rank of Department's Captain in retaliation for his airing complaints about Department to a reporter. Sundstrom's 42 U.S.C. § 1983 ("Section 1983") Complaint asserts that such conduct violated his First Amendment *fn1" and due process rights.

 All defendants have moved for summary judgment under Fed. R. Civ. P. ("Rule") 56. *fn2" For the reasons stated in this memorandum opinion and order, their motion is granted in principal part and is denied only as to one claim (the First Amendment claim) against one defendant (Village's Fire Chief Bruce Rodewald ("Rodewald")).

 Facts3

 Sundstrom joined Department as a firefighter in 1983 and became a Lieutenant in February 1989 (D. 12(m) P 10). From February through April 1989 he was trained as a fire prevention officer, and in May 1989 he became responsible for inspection of the Arlington International Racecourse (D. 12(m) P 11; P. 12(n) Supp. P 2). Sundstrom's examination of the Racecourse revealed over 700 violations (P. 12(n) Supp. P 2).

 In June 1991 Captain Frank Woodruff ("Woodruff") announced his retirement from Department effective November 21, 1991 (D. 12(m) P 17). That led to the Village Manager's request that Board fill the anticipated vacancy by promotion (id. P 18). Sundstrom wanted that Captaincy.

 Before this opinion turns to Sundstrom's application for that promotion and its eventual denial, a brief explanation of Board's promotional procedure is in order. Under Illinois law Board has the authority to select persons for promotion, with its choice required to be made from among the three highest ranking candidates (sometimes referred to as a "rule of three," discussed in this Court's opinion in Houk v. Village of Oak Lawn, 647 F. Supp. 710, 716-17 (N.D. Ill. 1986)). Here is the relevant portion of ILCS 5/10-2.1-15:

 
The board, by its rules, shall provide for promotion in the fire and police departments on the basis of ascertained merit and seniority in service and examination, and shall provide in all cases, where it is practicable, that vacancies shall be filled by promotion. All examinations for promotion shall be competitive among such members of the next lower rank as desire to submit themselves to examination. All promotions shall be made from the 3 having the highest rating, and where there are less than 3 names on the promotional eligible register, as originally posted, or remaining thereon after appointments have been made therefrom, appointments to fill existing vacancies shall be made from those names or name remaining on the promotional register . . . .

 Tracking that provision, Board's Rules state (D. 12(m) P 16):

 
The Commission shall make promotions from the three persons having the highest rating.

 Board's procedures to provide input for its decision comprised written evaluations, oral interviews *fn4" and departmental evaluations (for which the Chief apparently was responsible). As an added factor, Illinois law boosts the ranking of those applicants who have had military service (D. 12(m) P 14; 65 ILCS 5/10-2.1-11).

 To return to the particular facts of this case, initial results of the evaluations (posted on January 30, 1991) placed Sundstrom third on the list, behind Thomas Landmeier ("Landmeier") and Dennis Horcher ("Horcher") (P. 12(n) Supp. P 3). Inclusion of military points advanced Sundstrom to first place on the list (id.).

 During November and December 1991, after the examinations but before anyone was promoted to Captain, Sundstrom met with newspaper reporter Rebecca ("Carr"). Sundstrom told Carr of his concerns about the Racecourse's fire safety and expressed concern that Fire Chief Rodewald had signed off on the Racecourse even though safety violations still existed (P. 12(n) Supp. P 4).

 Carr interviewed Rodewald on December 5, 1991 (Carr Dep. 29). Sundstrom claims, and Carr's deposition supports the claim, that Rodewald knew that Sundstrom had told Carr of what he considered irregularities in issuance of the Racecourse's certificate of occupancy. Specifically, she asked Rodewald (1) about discrepancies between his report and Sundstrom's and (2) why, contrary to standard practice, he had ordered Sundstrom to give him both copies of the fire inspection report rather than to mail one to the State Fire Marshal (id. 47, 100-01; P. 12(n) P 5). Rodewald, while conceding that he was aware that Sundstrom had met with Carr, purports to deny "knowledge of specific statements by Sundstrom" (D. Mem. 4). But of course this Court cannot credit such a statement in a party's brief that does not identify any supporting evidence in the record.

 On December 10, 1991, five days after Carr had interviewed Rodewald, the latter wrote a memorandum to the Village Manager recommending appointment of Landmeier to fill the captain vacancy (P. 12(n) Supp. P 9). Sundstrom also asserts (id.) that Rodewald called Board member Howard Pollard ("Pollard") to suggest that Sundstrom not be appointed, at least in part because he had gained his ranking through military points rather than on merit. *fn5" On December 17, 1991 Rodewald met with Board members Robert Schuldt ("Schuldt") and Pollard about the promotion, and Rodewald again recommended that Landmeier fill the vacancy. This time his stated reason for the recommendation was that Landmeier had 18 years on the force, including 8 years as an inspector (P. 12(n) Supp. P 11). Rodewald did not refer to Sundstrom's statements to Carr (P. 12(n) Supp. P 10).

 Landmeier eventually received the promotion, and Sundstrom brought this Section 1983 against Village, Rodewald, Board and Board members Schuldt and Pollard. Federal jurisdiction derives from 28 U.S.C. §§ 1331 and 1343(a)(3).

 Procedural Due Process Violation?

 For Fourteenth Amendment purposes as such, Sundstrom trains his sights on a claimed deprivation of his right to procedural due process, claiming that defendants denied him promotion without a proper hearing. *fn6" But that misses the point that the deprivation itself must implicate a property or liberty interest. Because Sundstrom fails on that score to begin with, this opinion need not reach the question whether Sundstrom received an adequate hearing.

 Board of Regents v. Roth, 408 U.S. 564, 570, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972) explains that "the range of interests protected by procedural due process is not infinite" but extends only to the deprivation of liberty or property interests ( id. at 569). Only the second of those categories is arguably at issue here. *fn7" And the absence of a property interest in the promotion dooms that aspect of Sundstrom's claim. *fn8"

 Property interests derive not from the Constitution but from an independent source such as state law ( Roth, 408 U.S. at 577). There need not be an express statutory provision evidencing the entitlement, for it may arise from a nonstatutory promise on the part of the State (see Perry v. Sindermann, 408 U.S. 593, 601, 33 L. Ed. 2d 570, 92 S. Ct. 2694 (1972) (a person's due process property interest in a benefit exists "if there are such rules or mutually explicit understandings that support his claim of entitlement to the benefit"); Shlay v. Montgomery, 802 F.2d 918, 921 (7th Cir. l986)). *fn9" But Sundstrom must show that he had a "legitimate claim of entitlement" to the position and not just an "abstract need, desire or unilateral ...


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