Byers v. City of Albuquerque, 96-2255

• Decision Date: 29 July 1998
• Docket Number: No. 96-2255,96-2255
• Citation: 150 F.3d 1271
• Parties: 78 Fair Empl.Prac.Cas. (BNA) 100, 74 Empl. Prac. Dec. P 45,555, 98 CJ C.A.R. 4043 Joseph R. BYERS, Jr.; Douglas P. Bency; and Daniel R. Frampton, Plaintiffs-Appellants, v. CITY OF ALBUQUERQUE, a Municipal Corporation; Bob V. Stover, Chief of Police; Richard Campbell, Deputy Chief of Police; Deborah Martinez, Human Resources Department; and Joseph M. Polisar, Chief of Police, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1271

150 F.3d 1271

78 Fair Empl.Prac.Cas. (BNA) 100,

74 Empl. Prac. Dec. P 45,555, 98 CJ C.A.R. 4043

Joseph R. BYERS, Jr.; Douglas P. Bency; and Daniel R.

Frampton, Plaintiffs-Appellants, v. CITY OF ALBUQUERQUE, a Municipal Corporation; Bob V.

Stover, Chief of Police; Richard Campbell, Deputy Chief of

Police; Deborah Martinez, Human Resources Department; and

Joseph M. Polisar, Chief of Police, Defendants-Appellees.

No. 96-2255.

United States Court of Appeals, Tenth Circuit.

July 29, 1998.

Steven K. Sanders, Albuquerque, New Mexico, for Plaintiffs-Appellants.

Bruce T. Thompson, Assistant City Attorney, City of Albuquerque, Albuquerque, New Mexico (Robert M. White, City Attorney, City of Albuquerque, with him on the brief), for Defendants-Appellees.

Before PORFILIO, LUCERO, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

Joseph Byers, Douglas Bency, and Daniel Frampton (collectively "Plaintiffs"), white male police officers, brought suit against their municipal employer, the City of Albuquerque, and its agents, Chief of Police Joseph Polisar, former Chief of Police Bob Stover, Deputy Chief of Police Richard Campbell, and Human Resources Department Director Deborah Martinez (collectively "Defendants"). They allege Defendants failed to follow their own rules and regulations and discriminated against Plaintiffs on the basis of race and sex through the implementation of improper affirmative action policies during the 1993 Sergeants' Promotional Process, in violation of Title VII, the Due Process and Equal Protection Clauses of the United States Constitution (42 U.S.C. § 1983), and 42 U.S.C. § 1981. Plaintiffs also allege that a Mock Assessment Center conducted by Campbell in order to prepare candidates for the promotional process violated their due process and equal protection rights. Finally, Plaintiffs state claims under New Mexico law for a breach of contract and a breach of the covenant of good faith and fair dealing based on the same alleged discriminatory conduct.

Defendants filed three summary judgment motions. First, Defendants moved for summary judgment on all claims challenging the procedure used in the 1993 Sergeants' Promotional

Process based on Plaintiffs' lack of standing. Second, Defendants moved for summary judgment on the claim that the Mock Assessment Center was conducted in violation of Plaintiffs' civil rights. Third, Polisar, who became Chief of Police after the alleged wrongful conduct occurred, moved for summary judgment on the claims against him, arguing that Plaintiffs could not state a civil rights claim based on his failure to rectify alleged wrongdoings that occurred before he became Chief of Police. The district court granted all three summary judgment motions and Plaintiffs appeal. This court exercises jurisdiction pursuant to 28 U.S.C. § 1291 and affirms.

BACKGROUND

In 1993, Plaintiffs applied to be promoted to Sergeant. Promotions to the position of Sergeant within the Albuquerque Police Department are made from the Sergeants' Promotional List. The list is created by a two-stage competition among eligible officers. The first stage is a written examination and the second stage is an oral examination, known as the "Assessment Center." Only those employees who achieve a certain score on the written examination are advanced to the Assessment Center portion of the process.

Before the written examination, Defendants announced that the 35 officers with the highest written examination scores, plus those who tied at the cutoff score, would proceed to the Assessment Center portion of the Sergeants' Promotional Process. Defendants further announced that the 25 officers with the highest combined scores from the written test and the Assessment Center would be placed on the Sergeants' Promotional List.

The written examination was administered in August 1993. Because of a tie on the written examination, 36 officers qualified to proceed to the Assessment Center portion of the process. Approximately two weeks after the examination, however, Defendants announced that the final promotion list would be expanded from 25 to 30 officers and that the 40 officers with the highest written examination scores, plus those who tied at the cutoff score, would proceed to the Assessment Center. Because six officers tied for thirty-seventh place on the written examination, 42 officers proceeded to the Assessment Center. The six officers who were allowed to proceed to the Assessment Center pursuant to the expansion of the promotional list consisted of one Hispanic male, one Hispanic female, one Native American female, and three white males. Stover, who was Chief of Police during the promotional process, represented that the Sergeants' Promotional List was expanded upon a review of the departmental needs.

Based on their written examination scores, Plaintiffs all proceeded to the Assessment Center and would have so qualified even if the candidate pool had not been expanded to include six additional officers. Plaintiffs finished the promotion process with final rankings of 35, 40, and 41. Thus, none of the Plaintiffs made the final Sergeants' Promotional List of 30 officers. Of the six officers who became eligible to participate in the Assessment Center as a result of the expansion of the promotion list, four made the Sergeants' Promotional List, including two white males. The remaining two officers, who did not make the list, finished thirty-ninth and forty-second in the promotional process. If the six additional officers were deleted from the rankings, Plaintiffs would have finished with ranks of 31, 35, and 36. Plaintiffs therefore would not have made the original proposed list of 25. One of the individuals who made the Sergeants' Promotional List, however, subsequently left the Albuquerque Police Department. The officer ranked thirty-first was thus placed on the list.

Before the actual Assessment Center was conducted and at the request of one of the candidates, Campbell conducted a Mock Assessment Center. Campbell did not invite anyone to participate, but merely received requests to participate. Campbell originally planned to limit the number of participants to ten. Because only eleven candidates asked to participate, however, all eleven were accepted. The individuals who assisted Campbell in conducting the Mock Assessment Center did so voluntarily and without Polisar, who became Chief of Police after the 1993 Sergeants' Promotional Process was completed, was asked to investigate allegations of misconduct associated with the process. A memo from Polisar to Chief Administrative Officer Lawrence Rael ¹ stated that Martinez recommended the cutoff score for the written test be lowered for "Affirmative Action reasons" and that as a result of the change two Hispanics, one Native American, and two females were added to the Assessment Center pool. Additionally, the memo reported that "participation by the command staff in mock assessment centers gives the appearance of impropriety." The memo said that these acts would not be allowed in the future. Polisar took no other actions to rectify allegedly improper conduct which occurred during the 1993 Sergeants' Promotional Process.

pay. The Mock Assessment Center was, however, conducted on city property and some of the participants were on duty at the time it was conducted.

This court reviews the grant of summary judgment de novo, applying the same standards used by the district court. See Concrete Works of Colo., Inc. v. City & County of Denver, 36 F.3d 1513, 1517 (10th Cir.1994). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The factual record and reasonable inferences therefrom are viewed in the light most favorable to the party opposing summary judgment. See Concrete Works of Colo., Inc., 36 F.3d at 1517.

STANDING

Defendants argue that Plaintiffs lack standing to bring claims based on the 1993 Sergeants' Promotional Process. Standing is "an essential and unchanging part" of the Article III case-or-controversy requirement. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

It has been established by a long line of cases that a party seeking to invoke a federal court's jurisdiction must demonstrate three things: (1) injury in fact, by which we mean an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical; (2) a causal relationship between the injury and the challenged conduct, by which we mean that the injury fairly can be traced to the challenged action of the defendant, and has not resulted from the independent action of some third party not before the court; and (3) a likelihood that the injury will be redressed by a favorable decision, by which we mean that the prospect of obtaining relief from the injury as a result of a favorable ruling is not too speculative.

Northeastern Fla. Chapter of the Associated Gen. Contractors of Am. v. City of Jacksonville, Fla., 508 U.S. 656, 663-64, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993) (internal quotations and citations omitted); see also Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130. These three elements of standing are the "irreducible minimum" required by the Constitution. Northeastern Fla. Chapter of the Associated Gen. Contractors of Am., 508 U.S. at 664, 113 S.Ct. 2297 (internal quotation omitted). With respect to their claims challenging the 1993 Sergeants' Promotional Process, Plaintiffs argue, for purposes of standing, that they were injured both because they were not promoted and because they were not allowed to compete on an equal basis.

Plaintiffs have not shown a causal relationship between their failure to be...