Mungovan v. Peterson

Decision Date10 September 2010
Docket NumberNo. 09-2676.,09-2676.
PartiesJoseph FINCH, David E. Hensley, and Peter W. Mungovan, Plaintiffs-Appellees, v. Bart PETERSON, individually and in his official capacity, et al., Defendants-Appellants.
CourtU.S. Court of Appeals — Seventh Circuit


Gary P. Goodin, Attorney (argued), John D. Meyer, Attorney (argued), Goodin, Orzeske & Blackwell, P.C., Indianapolis, IN, for Plaintiffs-Appellees.

Anthony W. Overholt, Attorney (argued), Frost Brown Todd, Indianapolis, IN, for Defendants-Appellants.

Before FLAUM, WILLIAMS, and SYKES, Circuit Judges.

SYKES, Circuit Judge.

This interlocutory appeal arises from a complaint filed against the City of Indianapolis, its law-enforcement Merit Board, and seven city officials alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981, and 42 U.S.C. § 1983. The plaintiffs-three white police lieutenants-claim they were subjected to reverse discrimination because they were passed over for promotion to the rank of captain despite ranking higher on the Police Department's promotion eligibility list than three African-American lieutenants who were promoted ahead of them. The individual city officials moved for judgment on the pleadings, claiming qualified immunity based on the terms of a 1978 consent decree entered into by the Indianapolis Police Department and the United States Department of Justice (“DOJ”). They maintained that the consent decree required them to make the promotions at issue here. A magistrate judge disagreed and denied the motion, and the city officials appealed.

We affirm. The 1978 consent decree does not operate to confer qualified immunity on the city officials who were involved in making the challenged promotions. Nothing in that decree required them to take race into consideration in making promotions. To the contrary, specific language in the decree required promotions within the Police Department to be made without regard to race or color.

I. Background

In December 2006 the Indianapolis Police Department 1 promoted 11 of its lieutenants to the merit rank of captain. In making these promotions, the Police Department relied on a competitive process whereby applicants for promotion were screened, graded on the basis of a promotions exam, and then ranked on an “eligibility list.” The top seven lieutenants on the eligibility list all received promotions to captain. Lieutenants David Hensley, Joseph Finch, and Peter Mungovan occupied the next three spots on the eligibility list (numbers 8-10), yet none of these men were promoted. Instead, three African-American lieutenants who ranked 12th, 17th, and 26th on the eligibility list were promoted ahead of them. 2

After receiving a Notice of Right to Sue, the three lieutenants brought this suit alleging that the City of Indianapolis and its law-enforcement Merit Board violated Title VII, and that seven individual city officials who were involved in making these employment decisions violated § 1981 and § 1983 by denying them a promotion to captain solely on the basis of their race. 3 The defendants moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure based on the terms of a 1978 consent degree entered into by the Police Department and the DOJ. 4 The consent decree settled litigation alleging that the Police Department had engaged in a pattern of racially discriminatory employment practices that adversely affected African-Americans. The decree was designed to eliminate the discriminatory employment practices and to require the Police Department to take certain affirmative remedial measures to improve the job prospects of African-Americans in the Police Department. 5

More specifically, the city officials claimed in their motion that the 1978 consent decree conferred qualified immunity from suit because it effectively mandated the promotion decisions at issue here. The magistrate judge disagreed, concluding that the consent decree did not require-or even permit-the Police Department to make promotions based on race. The judge noted that although the consent decree set recruitment and hiring goals for African-American officers, it specifically stated that [p]romotions shall be based upon relevant standards and criteria which will be applied without regard to race or color.” The judge denied the Rule 12(c) motion in its entirety, and the individual city officials appealed. 6

II. Discussion

We have jurisdiction under the collateral-order doctrine to hear this appeal challenging the magistrate judge's denial of the individual city officials' claim of qualified immunity. In Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), the Supreme Court held that “a district court's denial of a claim of qualified immunity, to the extent it turns on an issue of law, is an appealable ‘final decision’ within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment.”

District-court orders denying qualified immunity are reviewed de novo. Carvajal v. Dominguez, 542 F.3d 561, 566 (7th Cir.2008). Because this case comes to us following the denial of a Rule 12(c) motion for judgment on the pleadings, we construe the allegations in the complaint in the light most favorable to the plaintiffs, Buchanan-Moore v. County of Milwaukee, 570 F.3d 824, 827 (7th Cir.2009), and ask two questions: (1) Do the facts alleged show that a constitutional right was violated, and (2) was the right in question sufficiently well established that a reasonable officer would have been aware of it? Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001); Narducci v. Moore, 572 F.3d 313, 318 (7th Cir.2009). Under Pearson v. Callahan, 555 U.S. 223, ----, 129 S.Ct. 808, 812, 172 L.Ed.2d 565 (2009), we need not consider these questions sequentially, but in this case, it makes sense to do so.

In denying the defendants' claim of qualified immunity, the magistrate judge concluded that the lieutenants had adequately alleged a violation of their right to equal protection in their employment, that this right was sufficiently well established in 2006 when the promotions in question took place, and that the 1978 consent decree did not require the City to make promotions based on race. These determinations were sound.

“Race-conscious employment decisions made by the state are presumptively unconstitutional and will satisfy the requirements of equal protection only where they are consistent with strict scrutiny.” Alexander v. City of Milwaukee, 474 F.3d 437, 444 (7th Cir.2007); see also Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995) ([W]e hold today that all racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny.”); City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493-94, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989) (holding that the standard of review under the Equal Protection Clause is not dependent on the race of those burdened or benefitted by a particular classification). The lieutenants alleged in their complaint that they were passed over for promotion in favor of three black lieutenants despite ranking higher on the Police Department's merit-based “eligibility list” than those who received promotion. A racial classification having been identified, it is the defendants' burden to prove that the classification satisfies strict scrutiny, Alexander, 474 F.3d at 444-45, a burden rarely carried at the pleadings stage. The lieutenants' complaint thus sufficiently alleges a constitutional violation. As for the second inquiry, it is well established under Croson and Adarand that racial classifications undertaken by governmental officials are constitutionally suspect and subject to strict scrutiny. Id. at 446-47.

The city officials do not challenge this basic analysis. They argue instead that they are entitled to qualified immunity because their actions were compelled by the 1978 consent decree. They cite the Eighth Circuit case of Martinez v. City of St. Louis, 539 F.3d 857 (8th Cir.2008), for the proposition that employment decisions made in accordance with a court-approved consent decree cannot form the basis of an unlawful discrimination action seeking damages. As a fallback position, they contend that at the very least, as of 2006 it was not clearly established that a municipal employee might face liability for mere compliance with a consent decree. Both of these arguments are based on a faulty factual premise-namely, that the consent decree required the use of race as a criterion for promotion within the Police Department.

The 1978 consent decree is a comprehensive agreement designed to remedy unlawful racial discrimination and correct underrepresentation and underutilization of African-Americans in the Police Department. 7 It is true that some sections of the 30-page decree permit the Police Department to take race into account when making certain employment decisions. For instance, Section IV, which covers “Recruitment and Hiring,” requires the Police Department, at least initially, to ensure that African-Americans constitute at least 25% of all future training classes for incoming officers. 8 This section of the...

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