Bigby v. City of Chicago

• Decision Date: 01 July 1985
• Docket Number: No. 84-2284,84-2284
• Citation: 766 F.2d 1053
• Parties: 38 Fair Empl.Prac.Cas. 853, 37 Empl. Prac. Dec. P 35,345, 54 USLW 2064 William C. BIGBY, et al., Plaintiffs, and Maurice Thoele, et al., Intervening Plaintiffs-Appellants, v. CITY OF CHICAGO and Chicago Police Department, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1053

766 F.2d 1053

38 Fair Empl.Prac.Cas. 853,

37 Empl. Prac. Dec. P 35,345, 54 USLW 2064

William C. BIGBY, et al., Plaintiffs and Maurice Thoele, et al., Intervening Plaintiffs-Appellants, v. CITY OF CHICAGO and Chicago Police Department, Defendants-Appellees.

No. 84-2284.

United States Court of Appeals Seventh Circuit.

Argued April 18, 1985.

Decided July 1, 1985.

John L. Gubbins, Chicago, Ill., for intervening plaintiffs-appellants.

Mary K. Rochford, Corp. Counsel, Chicago, Ill., for defendants-appellees.

Before CUDAHY and POSNER, Circuit Judges, and PELL, Senior Circuit Judge. ^*

POSNER, Circuit Judge.

A group of black police sergeants brought suit against the City of Chicago under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e et seq., alleging that the City had discriminated against them by refusing to promote them to lieutenant, because they had failed a lieutenants' examination which they contended was racially biased. A group of white and Hispanic police sergeants was allowed to intervene in the suit, to challenge the exam on a different ground: that it simply was not related to what a lieutenant does, and therefore violated the intervenors' rights under the due process clause of the Fourteenth Amendment. The district judge, after a bench trial, held in favor of the plaintiffs (the black sergeants) but against the intervenors. The judge's entire discussion of the intervenors' claim is as follows: "Although we have found defendants' 1977 lieutenants examination invalid under Title VII, it does not follow that it was arbitrary and capricious so as to entitle the intervenors, Maurice Thoele, et al. to recover under the Due Process Clause of the fourteenth amendment. While they may be the beneficiaries of the Bigby plaintiffs' victory, they are not entitled to any relief in their own right." They appeal.

It might seem that as "beneficiaries" of the plaintiffs' victory (from which, incidentally, the defendants have not appealed), the intervenors would have no standing to complain that the district court had failed to award them "relief in their own right"; it might seem that by knocking out the exam the plaintiffs had gotten everything the intervenors wanted. But the district judge ordered the immediate promotion of 11 black sergeants to lieutenant. If he had found that the intervenors' constitutional rights had been infringed as well as the plaintiffs', he surely would have ordered some of the intervenors promoted immediately, instead or in addition. Their claim is not moot.

The district judge rejected the claim on the ground that the lieutenants' examination was not arbitrary or capricious. But the basis of this conclusion is unexplained. The opinion contains many devastating criticisms of the lieutenants' examination en route to the conclusion, apropos the black sergeants' claim, that the exam is not "job related" within the meaning of cases interpreting Title VII. It is true that an exam might fail to survive the exacting scrutiny to which Title VII subjects examinations that have a disproportionate impact on a protected group such as blacks yet still not be so unreasonable as to create constitutional doubts unrelated to discrimination. Indeed, it would be quite odd if Title VII provided the measure of what is due process of law in public employment. This must have been what the judge thought. But what is unclear from the district judge's opinion--which has not a good word to say about the exam--or from the record before us on this appeal is why he thought the exam, though not job-related, was yet not arbitrary, capricious, or in a word irrational. If it were obvious why, we could uphold the district judge's decision despite his failure to explain. But it is not obvious. So if we thought that there was a constitutional right, unrelated to racial or other discrimination, to a rational test for promotion to a higher rung in the civil service of a state or municipality, we would remand the case for the judge to explain why he thought the lieutenants' test reasonable, though not job-related in a Title VII sense. But we do not think there is such a right. We first show how we reach this conclusion as a matter of principle, and then show that the case law supports our conclusion notwithstanding the contrary precedent of DiIulio v. Board of Fire & Police Comm'rs, 682 F.2d 666 (7th Cir.1982).

The due process clause of the Fourteenth Amendment forbids a state to deprive anyone of life, liberty, or property without due process of law. To make out a case under the clause one must therefore show first that one was deprived of life, liberty, or property, and second that the deprivation was brought about without due process of law. Neither element is present here.

The Supreme Court has held that the job of a tenured civil servant is property. See, e.g., Cleveland Bd. of Educ. v. Loudermill, --- U.S. ----, 105 S.Ct. 1487, 1491-92, 84 L.Ed.2d 494 (1985). So if a City of Chicago policeman, who under the law of Illinois cannot be fired without cause, see Ill.Rev.Stat. 1981, ch. 24, p 10-1-18.1, is fired, this is a deprivation of property; and he has only to show that it was done without due process of law in order to prove a violation of the Fourteenth Amendment. But these sergeants did not have a property interest in the rank, which they had not yet attained, of lieutenant. It is true that state law requires promotions of government employees, including policemen, to be "on the basis of ascertained merit and seniority in service and examination." Ill.Rev.Stat. 1981, ch. 24, p 10-1-13; see Chicago Municipal Code paragraphs 25.1-3, 25.1-5 (1977). (The statutory provisions for police forces in smaller municipalities are slightly different. See Ill.Rev.Stat.1981, ch. 24, Secs. 10-2.1-6, 10-2.1-15. So far as the issues in this case are concerned, the current Chicago Municipal Code (1982) is identical to the 1977 Code in effect when these sergeants were denied promotion.) The statute and ordinance create an expectation that the examinations used for promotions in the civil service will be fair but, as the Illinois courts have held, not so firm and definite an expectation as to be "property" in a constitutional sense. See, e.g., Sullivan v. Board of Fire & Police Comm'rs, 103 Ill.App.3d 167, 172, 58 Ill.Dec. 604, 608, 430 N.E.2d 636, 640 (1981) (construing the provisions relating to smaller municipalities--provisions actually more protective of promotion rights than the provisions applicable to Chicago); cf. Confederation of Police v. City of Chicago, 547 F.2d 375, 376 (7th Cir.1977). For it is not the examination that the applicant is interested in--no one likes taking tests--but the job. And with few lieutenancies available no one can have much confidence of doing well enough on the exam to become a lieutenant, especially since the grade on the examination is only one factor that the promoting authorities take into account in deciding whether to promote; the others are seniority and any evidence of merit besides the examination grade, such as the officer's efficiency rating by his superiors. See, e.g., Chicago Municipal Code, Sec. 25.1-5(6)(b) (1977); Lenert v. Wilson, 56 Ill.App.2d 325, 206 N.E.2d 294, 297 (1965). One has no "right" to a good efficiency rating from one's superior; rating is an exercise of the superior's discretion. See Lenert v. Wilson, supra, 56 Ill.App.2d at 332-34, 206 N.E.2d at 298; cf. Zuelke v. Board of Fire & Police Comm'rs, 79 Ill.App.3d 1080, 1082, 35 Ill.Dec. 130, 132, 398 N.E.2d 1080, 1082 (1979). Yet without such a rating one is most unlikely to be promoted to lieutenant Furthermore, the promoting officials are authorized to choose among the highest-rated applicants, and no criteria are provided for the choice. See Ill.Rev.Stat.1981, ch. 24, p 10-1-13; Chicago Municipal Code p 25.1-5(5) (1977). Construing the counterpart provision in the statute governing the police forces of smaller municipalities, McCoy v. Board of Fire & Police Comm'rs, 79 Ill.App.3d 742, 744, 35 Ill.Dec. 70, 72, 398 N.E.2d 1020, 1022 (1979), holds that "the promotion of a patrolman to sergeant is one of discretion," so that the plaintiff "had no vested right to promotion." The same is true of promotion from sergeant to lieutenant. Indeed it is more strongly true, since discretionary factors loom larger as one moves up in a hierarchy. Promotion to lieutenant's rank is not a matter of right and is not governed by fixed rules which if complied with automatically entitle the applicant to promotion. "To have a property interest ... a person ... must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972) (emphasis added). That is missing here.

Nor do we think the intervenors were deprived of their liberty. There is indeed a concept of liberty of occupation; it goes back to the eighteenth century, see, e.g., Madison, Essay on Property, in 6 Madison, Writings 101 (Hunt ed. 1906 [1792], and is the animating concept behind a number of old decisions in which the Supreme Court struck down state laws that interfered with that liberty. See, e.g., Smith v. Texas, 233 U.S. 630, 637-38, 34 S.Ct. 681, 682-83, 58 L.Ed. 1129 (1914); Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923). Although the Court has since abandoned the idea that the due process clause is a general charter of economic freedom, it has continued to provide limited protection for liberty of occupation. See, e.g., Hampton v. Mow Sun Wong, 426 U.S. 88, 102, 96 S.Ct. 1895, 1904, 48 L.Ed.2d 495 (1976). Important examples are cases decided in the 1950s and early 1960s concerning the reasonableness of conditions on admission to the bar. See, e.g., Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957). And cases such as Codd v. Velger, 429...