Burns v. Sullivan

• Decision Date: 31 March 1980
• Docket Number: No. 79-1424,79-1424
• Citation: 619 F.2d 99
• Parties: 24 Fair Empl.Prac.Cas. 39, 22 Empl. Prac. Dec. P 30,848 Francis J. BURNS, Plaintiff-Appellant, v. James Leo SULLIVAN et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 99

619 F.2d 99

24 Fair Empl.Prac.Cas. 39, 22 Empl. Prac.

Dec. P 30,848

Francis J. BURNS, Plaintiff-Appellant, v. James Leo SULLIVAN et al., Defendants-Appellees.

No. 79-1424.

United States Court of Appeals, First Circuit.

Argued Dec. 6, 1980.

Decided March 31, 1980.

John A. Moos, Boston, Mass., with whom Richard L. Zisson and Zisson & Veara, Boston, Mass., were on brief, for plaintiff-appellant.

Kenneth A. Behar, Boston, Mass., with whom Edward D. Kalman, Barbara J. Sproat and Behar & Kalman, Boston, Mass., were on brief, for defendants-appellees.

Francis X. Bellotti, Atty. Gen., Boston, Mass., with whom John F. Hurley, Jr., Asst. Atty. Gen., Boston, Mass., was on brief, for Personnel Administrator for the Division of Personnel Administration for the Commonwealth of Massachusetts, defendant-appellee.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

BOWNES, Circuit Judge.

Plaintiff-appellant, Francis J. Burns, a white policeman employed by the City of Cambridge Massachusetts, brought suit in June of 1978 against James L. Sullivan, City Manager of Cambridge, Walter J. Sullivan (not related to James L.), a Cambridge city councilor, and Walter Kountze, Personnel Administrator of the Division of Civil Service of the Commonwealth of Massachusetts. ¹ Burns alleged that the defendants had violated his constitutional rights in July of 1975 by promoting over him to the rank of sergeant twenty-two other applicants, including three blacks, whose names appeared below his on the civil service eligibility list for promotion. After considering the pleadings, affidavits from the defendants and depositions from others, the district court granted the motion of the defendants Sullivan for summary judgment.

On appeal, Burns contends the district court erred in granting summary judgment on his claims that he (1) was denied due process by the promotion rating system ratified by James L. Sullivan; (2) was denied equal protection by James L. Sullivan's decision to promote three blacks, among others, over him; and (3) suffered violation of his first amendment rights because of the advice he sought and received from Walter J. Sullivan subsequent to his non-promotion.

We affirm the district court's findings that Burns was not deprived of due process of law by the promotion procedure used by Cambridge and that Walter J. Sullivan did not violate Burns' first amendment rights. We also find that, since the applicable Massachusetts racial discrimination statute of limitations expired long before Burns filed suit, the district court lacked jurisdiction to hear Burns' equal protection claim.

The Facts

In October, 1973, one hundred ten Cambridge policemen seeking promotion to sergeant took a written civil service examination to determine eligibility for promotion. In April, 1974, the Director of Civil Service of the Commonwealth promulgated a list of seventy-three persons determined on the basis of the examination results to be eligible for promotion. ² The list ranked applicants from highest to lowest according to their score on the examination; Burns ranked ninth.

In July, 1974, five black Cambridge policemen filed suit alleging racial discrimination in the hiring and promotional procedures of the Cambridge Police Department. See Kantor v. Sullivan, C.A. No. 74-2662-T (D.Mass.). A consent decree entered into in June of 1975 to resolve that suit provided that twenty-eight persons on the eligible list would be promoted to sergeant. Shortly thereafter, Cambridge Police Chief Pisani ³ requested the names of eligible applicants from the Massachusetts Department of Civil Service and received the names of the top forty persons on the list, as well as instructions authorizing him to interview the "proposed appointees." ⁴

Chief Pisani subsequently conducted brief interviews with the forty remaining applicants, rating each on the basis of attitude and loyalty, judgment, leadership and supervisory abilities, initiative and resourcefulness and technical skills. By combining this oral examination score (on which Burns ranked thirty-seventh) with the scores from the written examination (on which Burns ranked ninth), Chief Pisani apparently created a new score by which he ranked the forty applicants. ⁵ The names of the twenty-eight persons with the highest scores were sent to and approved by City Manager Sullivan. The Personnel Administrator of the Commonwealth approved the appointments in July of 1975. Three persons listed among the top twenty-eight applicants on the original promotion eligibility list, including Burns, were not promoted to sergeant. The twenty-two persons promoted over Burns included three black policemen who were plaintiffs in Kantor. One of the black policemen, Herbert E. Halliday, ranked thirtieth on the original eligibility list. Pursuant to Massachusetts law, ⁶ which requires an explanation under such circumstances, City Manager Sullivan stated that the reason for appointing the twenty-two persons not ranked highest on the original eligibility list was that the appointees were "better qualified." The Personnel Administrator accepted this explanation in making the appointments.

Burns became aware on July 3, 1975, that he had been passed over for promotion. Under Massachusetts law, he had two statutory avenues of appeal from this decision. Massachusetts civil service law provides an automatic right of appeal to the Civil Service Commission for persons unsuccessful in gaining appointment or promotion. Mass.Gen.Laws Ann. ch. 31, § 2(b). ⁷ See Goldblatt v. Corporation Counsel, 360 Mass. 660, 662, 277 N.E.2d 273, 277 (1971). This remedy is limited by Civil Service Rule 33, which permits the Civil Service Commission to refuse to hear appeals filed more than thirty days after the Director's decision. ⁸ Judicial review of the Commission's decision may be sought by writ of certiorari to the Massachusetts Supreme Judicial Court. Goldblatt v. Corporation Counsel, supra. The second avenue open to Burns was the filing of a complaint of racial discrimination in employment pursuant to the Massachusetts antidiscrimination statute. Mass.Gen.Laws Ann. ch. 151B, § 5. ⁹ Such a complaint, if filed within six months of the act of discrimination, precipitates an investigation and, if warranted, corrective action by the Massachusetts Commission Against Discrimination (MCAD). Judicial review of the actions of the MCAD is available by appeal to the Superior Court and then to the Supreme Judicial Court. Mass.Gen.Laws Ann. ch. 151B, § 6. See East Chop Tennis Club v. Mass. Comm'n Against Discrimination, 364 Mass. 444, 305 N.E.2d 507 (1973).

Burns elected to pursue neither of these alternatives. Instead, he contacted Councilor Sullivan, in part to ask his advice and in part to use him to pressure City Manager Sullivan, who served at the pleasure of the City Council, to promote him to sergeant. Councilor Sullivan advised Burns not to cause a controversy and not to hire a lawyer. Two days later, Burns retained counsel. Burns' attorney also advised Burns not to cause a controversy over his nonpromotion. Burns followed that advice, taking no legal action until the filing of this suit on June 28, 1978, nearly three years after the announcement of the promotion list. ¹⁰

The Due Process Claim

Burns contends it was error for the district court to grant summary judgment on his claim of denial of due process because of the failure of Cambridge City Manager Sullivan and Police Chief Pisani to follow procedures mandated by Massachusetts civil service law. Although we agree that the Cambridge Police Department procedures for the 1975 sergeant promotion were irregular, see note 5, supra, we find no error in the district court's ruling that these irregularities are not constitutionally significant.

The requirements of procedural due process apply only to the deprivation of interests encompassed by the fourteenth amendment's protection of liberty and property. Board of Regents v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972); Ventetuolo v. Burke, 596 F.2d 476 (1st Cir. 1979). Burns asserts no deprivation of a liberty interest, but argues that the placing of his name on the original eligibility list for promotion and the historic Cambridge Police Department practice of promoting directly from that list gave rise to a property interest. Despite the fact that the property interests protected by the Due Process Clause include interests secured by "existing rules or understandings," Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972), and that some aspects of the Massachusetts civil service system may arguably create property interests, Lavash v. Kountze, 604 F.2d 103 (1st Cir. 1979) (question of property interest in position on eligibility list left undecided), we do not think Burns possessed a property interest in promotion to sergeant.

Massachusetts civil service law provides that most civil service appointments must be made from an eligibility list established as a result of a competitive examination. Mass.Gen.Laws Ann. ch. 31, § 6. Burns took a written competitive examination for promotion to sergeant, placing ninth. If chief Pisani and City Manager Sullivan had selected the twenty-eight promotees from that list, Burns may well have enjoyed a protected right to promotion. However, Massachusetts law also permits oral and practical examinations to be given in conjunction with written examinations. Mass.Gen.Laws Ann. ch. 31, § 10 now codified at ch. 31, § 16. If, because of the results of any such additional examinations, or the consideration of other factors, such as experience, Mass.Gen.Laws Ann. ch. 31, § 22, the promoting authority decides to promote persons whose rank on the original eligibility list is lower than that of persons who are not promoted, the promoting authority must state the reasons for deviating from the order of the eligibility list. Mass.Gen.Laws Ann. ch. 31, §...