Hermes v. Hein

• Decision Date: 17 August 1984
• Docket Number: Nos. 82-3099,83-2119,s. 82-3099
• Citation: 742 F.2d 350
• Parties: John Michael HERMES, Burt Kaminsky, Arthur Hochstradter, Timothy Hillyer, Frank Murphy, Michael Rompala, Jr., Michael Staufenbiel, Dexter Gorski, Lawrence Parks, Bruce P. Batka, and William Sharpe, Plaintiffs-Appellants, v. William HEIN, individually and as President of the Village Board of the Village of Wheeling, Illinois; Jack Metzger, individually and as Chairman of the Board of Fire and Police Commissioners of the Village of Wheeling, Illinois; Jerome Vesecky, individually and as Secretary of the Board of Fire and Police Commissioners of the Village of Wheeling, Illinois; Alan Carlson, individually and as a member of the Board of Fire and Police Commissioners of the Village of Wheeling, Illinois; Ronald Bruhn; Robert Olson; Theodore Bracke, individually and as Chief of Police of the Village of Wheeling, Illinois; Billy Wayne Ralston; Jack Koenig; and the Village of Wheeling, an Illinois corporation and body politic, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 350

742 F.2d 350

John Michael HERMES, Burt Kaminsky, Arthur Hochstradter,

Timothy Hillyer, Frank Murphy, Michael Rompala, Jr., Michael

Staufenbiel, Dexter Gorski, Lawrence Parks, Bruce P. Batka, and William Sharpe, Plaintiffs-Appellants, v. William HEIN, individually and as President of the Village

Board of the Village of Wheeling, Illinois; Jack Metzger,

individually and as Chairman of the Board of Fire and Police

Commissioners of the Village of Wheeling, Illinois; Jerome

Vesecky, individually and as Secretary of the Board of Fire

and Police Commissioners of the Village of Wheeling,

Illinois; Alan Carlson, individually and as a member of the

Board of Fire and Police Commissioners of the Village of

Wheeling, Illinois; Ronald Bruhn; Robert Olson; Theodore

Bracke, individually and as Chief of Police of the Village

of Wheeling, Illinois; Billy Wayne Ralston; Jack Koenig;

and the Village of Wheeling, an Illinois corporation and

body politic, Defendants-Appellants.

Nos. 82-3099, 83-2119.

United States Court of Appeals,

Seventh Circuit.

Argued Feb. 7, 1984.

Decided Aug. 17, 1984.

Michael J. Wall, Rothschild, Barry & Myers, Chicago, Ill., for plaintiffs.

Gary A. Weintraub, Jann, Carroll, Sain & Dolin, David A. Epstein, Chicago, Ill., for defendants.

Before CUDAHY, FLAUM, Circuit Judges, and BARTELS, Senior District Judge. ^*

FLAUM, Circuit Judge.

This action, brought under 42 U.S.C. Secs. 1983 and 1985, presents us with appeals from the district court's decisions granting the defendants' motions for summary judgment and awarding the defendants more than $89,000 in attorneys' fees and costs. For the reasons set forth below, we affirm the summary judgment ruling, but we remand the case for further consideration of the issue of attorneys' fees.

In the fall of 1978, the Board of Fire and Police Commissioners of the Village of Wheeling, Illinois, ("Commissioners") conducted competitive examinations for the purpose of promoting one police officer to the rank of lieutenant and one officer to the rank of sergeant. The examinations consisted of four components, each of which contributed a fixed percentage to the final score: written examination--55%; oral examination--25%; merit and efficiency rating--10%; seniority (1% per year with a maximum of ten years)--10%. Plaintiff Hermes, a police officer in the Wheeling Police Department, participated in the competition for promotion to lieutenant, while the other ten plaintiffs, also Wheeling police officers, took the examination for promotion to sergeant. Although the Commissioners awarded Hermes the maximum possible score on each discretionary component of the lieutenant examination, Hermes placed second on the final eligibility list for the lieutenant position. Four of the plaintiffs competing for the sergeant position failed the written examination and were disqualified. The remaining six plaintiffs placed sixth, seventh, eighth, eleventh, fourteenth, and sixteenth on the final sergeant list. After the posting of the final lists, defendants Ralston and Koenig, who placed first on the lieutenant and sergeant lists, respectively, received the promotions.

The plaintiffs filed suit in federal district court on February 27, 1979. They alleged that the Commissioners, the President of the Village of Wheeling, and the Village of Wheeling ¹ falsified the results of the examinations and manipulated the numerical rank of each candidate on the eligibility lists for the purpose of promoting Ralston and Koenig, who allegedly have local political affiliations. The plaintiffs claimed that this conduct violated their first amendment right to remain politically neutral and their due process right to promotion and that they were entitled to relief under 42 U.S.C. Secs. 1983 and 1985. The defendants moved to dismiss the complaint. On November 16, 1979, the district court ² ruled that although the complaint adequately alleged a violation of the plaintiffs' first amendment rights, it did not allege a sufficient basis on which to find that the plaintiffs had a property interest in promotion for purposes of due process. The court thus dismissed the plaintiffs' due process claim with leave to amend. Hermes v. Hein, 479 F.Supp. 820, 824-25 (N.D.Ill.1979). The plaintiffs then amended their complaint, and the defendants again moved for dismissal. On December 24, 1980, the district court denied the defendants' motion to dismiss the amended complaint, ruling that the plaintiffs' allegations were sufficient to establish a due process property interest in promotion. Hermes v. Hein, 511 F.Supp. 123 (N.D.Ill.1980).

During 1979 and 1980, the plaintiffs conducted sixteen deposition sessions and served interrogatories on the defendants, while the defendants posed interrogatories to the plaintiffs. The defendants moved for summary judgment on March 25, 1981, and the district court granted the motion on November 30, 1982. The defendants then asked for attorneys' fees and costs, and on May 13, 1983, the district court awarded $87,326.50 in fees and $2,344.65 in costs. The plaintiffs now appeal both district court rulings.

Summary Judgment

In its memorandum opinion granting the defendants' motion for summary judgment, the district court found that the plaintiffs failed to provide any factual support or raise any genuinely contested issues of material fact regarding either their first amendment claim of political discrimination or their due process claim. With regard to the first amendment claim, the court applied the principles of Mt. Healthy Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), and ruled that the plaintiffs failed to show both that their political associations were a motivating factor in the promotion process and that but for their protected conduct, they would have been promoted. In discussing the due process claim, the court stated that, to establish a due process property interest in promotion under the guidelines expressed in Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), and Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), the plaintiffs had to show that the defendants had a policy, communicated to the plaintiffs, to promote in exact rank order from the eligibility roster. The court found, however, that although the plaintiffs properly alleged such a policy, they failed to adduce any meaningful facts to support their allegations. Furthermore, with regard to both the first amendment and the due process claims, the court held that the "[p]laintiffs simply have no actual support for their charges of impropriety or irregularity concerning the administration of the oral and written promotional exams." Memorandum Opinion dated November 30, 1982, at 12. In addition, the court found that no material facts supported the plaintiffs' conspiracy charges under 42 U.S.C. Sec. 1985(3).

In appealing the district court's decision, the plaintiffs contend first that the district court did not use the proper legal standard to decide the defendants' motions for summary judgment. The plaintiffs also argue that genuine issues of material fact exist on both the first amendment and the due process claims. Finally, the plaintiffs maintain that the district court abused its discretion by denying their request for additional discovery.

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment shall be granted if the record shows 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." In responding to a properly supported motion for summary judgment, the nonmoving party must set forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e). See also Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 392, 393, 78 L.Ed.2d 336 (1983). Although any inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party, only reasonable inferences will be considered. Korf v. Ball State University, 726 F.2d 1222, 1226 (7th Cir.1984); Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Voigt, 700 F.2d 341, 349 (7th Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 53, 78 L.Ed.2d 72 (1983).

Applying this legal standard to the facts in the present case, the district court's grant of summary judgment on the plaintiffs' first amendment claim will be sustained if the only reasonable inferences from the record are that Ralston and Koenig would have been promoted regardless of their political affiliations. ³ See Mt. Healthy Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977) (no constitutional violation where public employer can show that employee would have been transferred even if employee had not exercised first amendment rights). Cf. Egger v. Phillips, 710 F.2d 292, 322-23 (7th Cir.1983) (en banc) (although record revealed that employer would not have transferred employee but for employee's first amendment activity, summary judgment for defendant was proper where transfer was tailored to vindicate specific state interest at stake), cert. denied, --- U.S. ----, 104 S.Ct. 284, 78 L.Ed.2d 262 (1983). If evidence of the defendants' motivation in promoting Ralston and Koenig is subject to conflicting interpretations, summary judgment is not appropriate, regardless of the defendants' denials of political motivation. Conrad v. Delta Airlines, 494 F.2d 914, 918 (7th Cir.1974).

In support of their motions for summary judgment, the defendants presented deposition testimony and interrogatory answers to demonstrate that neither Ralston nor Koenig have any local political affiliations and that, in any event, both officers would have been promoted regardless of their political associations. In response to the defendants' motions, the plaintiffs failed to set forth specific facts showing that there was an issue...