Although the Illinois Municipal Code prohibits city employees from manipulating civil service examinations, the 7th U.S. Circuit Court of Appeals concluded that Chicago police Sgt. Hosea Word doesn’t have a due process right to an unrigged test for promotion to lieutenant — because the statute didn’t create a “protected property interest in a fair lieutenants’ examination.”
Word’s complaint against the city and three high-ranking officials of the Chicago Police Department, or CPD, alleged the individual defendants wired the 2015 exam by tipping off their “wives and paramours” about the test’s questions. Alleging that the tippees aced the test and were promoted, Word claimed he was deprived of his rights to due process and equal protection.
Affirming an order that tossed the case, the 7th Circuit explained that (1) “chaos” would be created “if we began to recognize every act forbidden by law as implying a mirror-image property right to the act’s nonexistence”; (2) “there are no protected property interests in either promotion within the police department or a fair examination for such preferment”; (3) “class of one equal protection claims are barred in the public employment context”; and (4) Word’s “theory does not add up to gender discrimination.” Word v. City of Chicago, No. 19-1320 (Jan. 6, 2020).
Here are highlights of Judge Joel M. Flaum’s opinion (with light editing and omissions not noted):
According to Word, he and other legitimate test-takers had a constitutionally protected property interest in a fair lieutenants’ examination “free of cheating and rigging.”
Word grounds this claim in the Illinois Municipal Code’s language that “no person or officer shall … wilfully or corruptly furnish to any person any special or secret information for the purpose of either improving or injuring the prospects or chances of any person so examined, or to be examined, being appointed, employed or promoted.” 65 ILCS 5/10-1-26.
Word contends this statute “creates a protectable property interest in fair civil service examinations, and specifically prohibits the cheating that transpired here.”
Word does not cite any authority holding that a statute, by merely forbidding an act, creates a property interest in the act not occurring. The cases on which he relies are inapt.
In Mueller v. Board of Fire and Police Commissioners of Lake Zurich, 643 N.E.2d 255 (1994), the Illinois Appellate Court held that a village’s process for hiring paramedics was subject to state judicial review under Illinois’ Administrative Review Law.
Per Word, Mueller shows that “Illinois law recognizes that the integrity of the promotional process is itself protected.” But Mueller does not hold that there is a property interest in any municipal promotional process; indeed, the word “property” appears nowhere in the decision and property as a concept formed no basis for its conclusions.
Likewise, Word’s reference to Peoria Police Sergeants v. Peoria Board of Fire and Police Commissioners, 574 N.E.2d 1240 (1991), is not relevant. There, the Illinois Appellate Court held that a city’s promotional procedure violated 65 ILCS 5/10-2.1-15, which required police and fire boards to “provide for promotion in the fire and police departments on the basis of ascertained merit and seniority in service and examination.” Peoria says nothing about a constitutionally protected property interest.
Word argues that cases and statutes need not “contain language explicitly declaring” a property interest exists but has not shown why we should find a property interest here. No court has ever cited Peoria or Mueller to suggest they created or described a property interest, for the simple reason that neither does so.
It takes little imagination to foresee the chaos that would result if we began to recognize every act forbidden by law as implying a mirror-image property right to the act’s nonexistence.
We need not engage in such conjecture, as we already have determined that there are no protected property interests in either promotion within the police department or a fair examination for such preferment.
In Bigby v. Chicago, 766 F.2d 1053 (1985), a group of police sergeants challenged an earlier version of the lieutenants’ examination as arbitrary and capricious, and thus violative of due process. We held that while a police officer had a property interest in retaining his job, he had no such interest in an unattained higher rank.
Concomitant with this conclusion, we also ruled that there is no constitutionally protected property interest in a fair examination for promotion.
“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.” Id. (quoting 65 ILCS 5/10-2.1-15). “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.” Id.
Word tries to distinguish himself from the sergeants in Bigby on the ground that he does not claim to possess a property interest in the promotion or lieutenant’s rank, but in a fair examination for the rank. But as just described, we already rejected that distinction: “It is not the examination that the applicant is interested in — no one likes taking tests — but the job.” Id.
Word insists that the relevant language in Bigby is mere dicta, or otherwise should be repudiated today, but offers no compelling arguments for doing so. As we and other courts have held, state law does not provide a property interest in state promotional procedures.
Word also claims that the defendants’ actions violated his equal protection rights and that the city is liable under Monell v. Department of Social Services of the City of New York, 426 U.S. 658 (1978). He raises two bases for his equal protection claim: (1) he and other legitimate test-takers were singled out “for arbitrary and irrational treatment” because they were not romantically entwined with CPD leadership; and (2) he is a member of a protected gender class, “as opposed to the wives and paramours.”
Neither argument convinces, and because Word has failed to establish an underlying constitutional violation, the district court appropriately dismissed his Monell claim.
Arbitrary and irrational treatment
Word argues that the equal protection clause protects individuals against arbitrary and irrational treatment by state action, even if such action is not taken due to a plaintiff’s membership in any particular class. In other words, Word maintains he has a “class of one” equal protection claim against the defendants.
“Our cases have recognized successful equal protection claims brought by a ‘class of one,’ where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” Willowbrook v. Olech, 528 U.S. 562 (2000).
[Footnote: The “class of one” language may be slightly misleading; it describes a type of a claim rather than a numerical limitation. See Olech, 528 U.S. at 564 (“Whether the complaint alleges a class of one or of five is of no consequence because we conclude that the number of individuals in a class is immaterial for equal protection analysis.”).]
Word asserts that there is no “class of one” bar against equal protection claims.
We do not dispute that such claims may be viable under certain circumstances. But Word has failed to address defendants’ argument that class of one equal protection claims are barred in the public employment context.
Word’s claim runs headlong into Engquist v. Oregon Department of Agriculture, 553 U.S. 591 (2008), in which the Supreme Court held that “the question in this case is whether a public employee can state a claim under the equal protection clause by alleging that she was arbitrarily treated differently from other similarly situated employees, with no assertion that the different treatment was based on the employee’s membership in any particular class. We hold that such a ‘class-of-one’ theory of equal protection has no place in the public employment context.”
Word has not provided any argument against the application of Engquist.
Protected gender class
Word makes the cursory point that he “is in a protected gender class, as opposed to the wives and paramours.” Word arguably forfeited this claim by failing to develop it, but even if we were to consider it, it would fail.
In a protected-class equal protection analysis, a plaintiff must show that “defendants acted with a nefarious discriminatory purpose and discriminated against him based on his membership in a definable class.” Nabozny v. Podlesny, 92 F.3d 446 (7th Cir. 1996).
Word tries to claim gender discrimination, but his theory does not add up to gender discrimination. He claims he was discriminated against because he was not in a romantic relationship with a CPD executive. Such an allegation does not suffice to state an equal protection claim:
“A male executive’s romantically motivated favoritism toward a female subordinate is not sex discrimination even when it disadvantages a male competitor of the woman. Such favoritism is not based on a belief that women are better workers, or otherwise deserve to be treated better, than men; indeed, it is entirely consistent with the opposite opinion. The effect on the composition of the workplace is likely to be nil, especially since the disadvantaged competitor is as likely to be another woman as a man. Neither in purpose nor in consequence can favoritism resulting from a personal relationship be equated to sex discrimination.” Preston v. Wisconsin Health Fund, 397 F.3d 539 (7th Cir. 2005).
Word makes precisely this claim, and therefore we must affirm its dismissal.