Carter v. City of Philadelphia

Decision Date19 March 1993
Docket NumberNo. 92-1483,92-1483
Citation989 F.2d 117
Parties61 Empl. Prac. Dec. P 42,110 Warren C. CARTER, Appellant, v. CITY OF PHILADELPHIA; Willie L. Williams; Orville W. Jones; Linda L. Seyda.
CourtU.S. Court of Appeals — Third Circuit

Howard Lebofsky (argued), Goren & Lebofsky, P.C., Fort Washington, PA, for appellant.

Judith E. Harris, City Sol., John P. Straub, Chief Deputy in Charge of Sp. Litigation, Lek Domni (argued), Office of City Sol., Philadelphia, PA, for appellees.

Before: MANSMANN and NYGAARD, Circuit Judges, and RODRIGUEZ, District Judge. *

OPINION OF THE COURT

MANSMANN, Circuit Judge.

We address a conflict between the Pennsylvania Veterans' Preference Act, 51 Pa.Cons.Stat.Ann. § 7104(b), which confers a preference to armed forces veterans seeking civil service promotions, and Philadelphia Civil Service Regulation 9.024, which specifically denies veterans any favorable treatment in promotion considerations.

In a complaint filed in the Pennsylvania state courts, Philadelphia police officer Warren C. Carter alleged that, in violation of state and federal laws, the City of Philadelphia and its police department's administrative personnel failed to implement the Pennsylvania statute when he applied for promotion to the position of police sergeant. Count IV of the complaint, brought pursuant to 42 U.S.C. § 1983, asserted that the failure to utilize the Pennsylvania Veterans' Preference Act deprived Carter of a property right secured by the Constitution.

Because of the presence of the federal claim, the defendants removed the action to the United States District Court for the Eastern District of Pennsylvania. On a motion to dismiss, the district court held that the authority of local governments to legislate municipal functions, granted by the Home Rule Act, 53 Pa.Stat.Ann. § 13131 (1949), dictated enforcement supersedence to the Philadelphia Civil Service Regulations, overriding the state preference statute.

We will vacate and remand. The Pennsylvania Veterans' Preference Act explicitly directs that the preference is to be applied in all of the Commonwealth's political subdivisions. 51 Pa.Cons.Stat.Ann. § 7109. The Philadelphia Civil Service Regulation, repudiating the preference, is in conflict with state law and is therefore invalid.

In addition, the veteran's right to be granted the statutory preference is constitutionally protected. If it is denied, a cause of action under 42 U.S.C. § 1983 may arise.

I.

In an appeal from a district court's dismissal of an action, we accept all well-pleaded allegations of the complaint as true and construe them liberally in favor of the plaintiff. Gomez v. Toledo, 446 U.S. 635, 636 n. 3, 100 S.Ct. 1920, 1921, 64 L.Ed.2d 572 (1980). Particularly when a civil rights violation is alleged, we should not affirm a dismissal at the pleading stage, unless it is readily discerned that the facts cannot support entitlement to relief. Robb v. City of Philadelphia, 733 F.2d 286, 290 (3d Cir.1984). With the plaintiff's position so favored, we recite the facts.

Warren C. Carter is a veteran of the armed forces and has been a Philadelphia police officer since 1969. On June 24, 1989, Carter took the civil service promotion examination for the position of police sergeant, received a passing grade and was ranked number 280 on the civil service promotion list.

One hundred twenty-five officers were promoted to sergeant in April, 1990. In August, 1990, the police department notified all individuals on the promotional list that they had the option of taking a special Spanish oral fluency examination. Carter did not take the exam. In June, 1991, 158 additional individuals were promoted to sergeant, including eight who had completed the Spanish examination. Six of these eight individuals ranked lower than Carter on the promotional list. 1 The list expired in November, 1991 without any further promotions.

Carter instituted this lawsuit on November 18, 1991 by filing a civil action in the Court of Common Pleas of Philadelphia County against the City of Philadelphia, the Police Commissioner, the Director of Personnel and the Acting Director of Personnel. In count IV of the complaint, Carter alleged that, in violation of 42 U.S.C. § 1983, the defendants, acting under color of state law, deprived him of property without due process of law. Carter asserted that a provision of the Pennsylvania Veterans' Preference Act, 51 Pa.Cons.Stat.Ann. § 7104(b), 2 entitles him, as a veteran, to a preference in promotion, that he had a property interest in this promotion and a legitimate claim of entitlement to it. Carter further claimed that the city's utilization of § 9.024 of the Philadelphia Civil Service Regulations, 3 which negates veterans' preference in promotion, was unconstitutionally applied to him and deprived him of his state-law guaranteed property right to promotion to the sergeant's position. 4

The district court found the Veterans' Preference Act inapplicable to Carter's application for promotion and granted the defendants' motion to dismiss. The remaining counts were remanded to the Philadelphia Court of Common Pleas.

We have jurisdiction under 28 U.S.C. § 1291.

II.

To establish a valid § 1983 civil rights claim, Carter must demonstrate that the conduct complained of was committed by a person acting under state law and "that the conduct deprived him of rights, privileges or immunities secured by the Constitution." Robb, 733 F.2d at 290-91, citing Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981).

Neither the defendant city, a municipality, nor the individuals named--Police Commissioner Willie L. Williams, Director of Personnel Orville Jones and Acting Director of Personnel Linda Seyda--challenges the assertion that they are acting under state law and are susceptible to liability. Owens v. Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980); Monell v. Dep't of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).

We, therefore, turn to the issue of whether the city and its officials, in their actions concerning Carter's promotion, violated his constitutional rights. Because the Fourteenth Amendment prohibits a state from depriving an individual of property without due process, a constitutional violation can occur if Carter's interest implicates protected property rights.

One alleging a property interest in a benefit protected by due process must go beyond showing an unsubstantiated expectation of the benefit. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). The plaintiff must demonstrate entitlement to a property interest created expressly by state statute or regulation or arising from government policy or a mutually explicit understanding between a government employer and an employee. Robb, 733 F.2d at 292; Perry v. Sinderman, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972), overruled on other grounds, Rust v. Sullivan, --- U.S. ----, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991). Carter must show that his alleged property right has such a basis in state law.

III.

Pennsylvania law currently provides that when a soldier possesses the requisite qualifications and his/her name appears on a list as eligible for promotion, that soldier's request for promotion is entitled to preferential consideration, regardless of his/her ranking on the list. 51 Pa.Cons.Stat.Ann. § 7104(b). The courts of Pennsylvania first addressed the issue of veterans' preference laws in Commonwealth ex rel. Graham v. Schmid, 333 Pa. 568, 3 A.2d 701 (1938). In Schmid, the Pennsylvania Supreme Court examined two different types of point additions awarded to veterans taking examinations under the civil service provisions in the Third Class City Law. The Court outlined the test to be used in determining the constitutionality of such grade enhancements:

There must be some reasonable relation between the basis for preference and the object to be obtained, the preference of veterans for the public performance of public duties.

* * * * * *

Our conclusion ... is that, so long as the statute requires passage of the examination a veteran may constitutionally be preferred over a non-veteran whether the statute be directory or mandatory. In either case the minimum qualification for appointment is success in an examination. Its passage satisfies the requirement that appointments of public employees be made only of persons reasonably fitted for the position.

Id. 3 A.2d at 704-05. Accordingly, the provision adding 10 points to the scores of veterans who had already passed the examination was upheld and the provision allowing a 15% credit to veterans in advance of taking the exam was stricken.

Thirteen years later, the Pennsylvania Supreme Court examined a provision of the former Pennsylvania Military Code, 51 P.S. § 492.3, which awarded veterans ten additional points in grading civil service promotion exams. Commonwealth ex rel. Maurer v. O'Neill, 368 Pa. 369, 83 A.2d 382 (1951). In O'Neill, the Pennsylvania Supreme Court did not apply its reasoning in Schmid to promotions, holding that:

We do not doubt but that military training received by veterans during the course of their service renders them superior candidates for public offices of the nature now under consideration [promotion for captain of the Fire Bureau of the City of Philadelphia]. However, we are convinced that the legislature, in authorizing the addition of 10 percentage points to the veterans' final examination marks in all competitive examinations for higher positions than the original appointments, have placed far too high a value on the benefit of the public service of military training of veterans.... To credit veteran examinees in examinations for success of promotions with the same total of gratuitous percentage points as in the instance of their original appointment to a public position is, therefore,...

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