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Police sergeant who claimed ‘wives and paramours’ were given promotional advantage couldn’t revive property interest claim

By Brandi O. Brown, J.D.

Although the employee contended this favoritism violated his rights, his due process, equal protection, and breach of contract claims were untenable under existing caselaw.

A Chicago police sergeant’s constitutional and contract claims were “squarely” precluded by state and federal caselaw, the Seventh Circuit found, refusing to revive them. The appeals court previously ruled in a similar case that there was no constitutionally protected property interest in a fair promotion examination. The employee’s equal protection claim, whether based on a “class of one” or gender discrimination, likewise failed, and his breach of contract claims fell “short of the mark.” Therefore, the district court’s judgment was affirmed (Word v. City of Chicago, January 6, 2020, Flaum, J.).

Romantic advantage. After just missing the cut for promotion to lieutenant in 2006, the police sergeant tried again nine years later. This time he ranked even lower and was passed over again. However, he cried foul because some of the sergeants had been given test content before the examination. He contended that those employees, who were the “wives and paramours” of certain police department leaders, formed a “study group” to cheat their way to promotion. He pointed to the fact that one of those individuals had scored much lower than him in 2006 but received the highest ranking on the 2015 exam.

In his lawsuit against the city and individual defendants, he alleged violations of equal protection and due process, as well as breach of contract. The district court granted the defendants’ motion to dismiss and the employee appealed.

Due process. The employee attempted to distinguish a previous Seventh Circuit decision regarding protected property interests in police department promotions, but he failed to persuade the court. He fashioned the argument as proposing a property interest in a fair examination, rather than promotion or rank. However, this distinction had already been rejected in Bigby v. City of Chicago, where the appeals court had explained, “[I]t is not the examination that the applicant is interested in—no one likes taking tests—but the job.” A police officer does not have a property interest in a higher rank that is not obtained, nor does he have one in a fair examination for promotion, the court held in Bigby.

Equal protection. His equal protection claim fared no better on appeal. The employee raised two bases for his claim: that he and other test-takers were the subject of arbitrary and irrational treatment by state action (a “class of one” claim) and that he was in a protected gender class. With regards to his “class of one” theory, the appeals court explained that such claims are barred in the public employment context under the U.S. Supreme Court’s decision in Engquist v. Or. Dep’t of Agric., and the employee failed to provide any argument against application of that precedential decision.

The employee “arguably forfeited” his claim based on being part of a protected gender class, but the appeals court nevertheless considered and rejected it. His theory that he was discriminated against because he was not in a romantic relationship with a department executive did not “add up to gender discrimination.” Again, an earlier Seventh Circuit decision touched on the precise concern raised by the employee here. In that case, Preston v. Wis. Health Fund, the court had explained that “romantically motivated favoritism” by a male executive towards a female subordinate does not constitute sex discrimination “even when it disadvantages a male competitor of the woman.”

Breach of contract. The appeals court also considered, and rejected, his breach of contract claims. His direct breach claim was based on the argument that he and the city had a contract for fair administration of the examination. This fell short because the employee failed to identify a statement, whether oral or written, that constituted an offer. He pointed to the examination announcement as evidence of an offer. However, the announcement contained an explicit statement that it was not “an offer of promotion.” Even if the offer in question was merely an offer of a “fairly administered” examination, as the employee argued, the announcement did not contain language capable of inducing a reasonable belief on the part of the employee that he could bind the city by accepting it.

Nor could he revive his contract claim alleging he was a third-party beneficiary between the city and the exam administrator. Illinois law strongly disfavors the finding of such a relationship absent express language creating it. It was not sufficient that the city could only expect an applicant pool if the aspiring exam-takers knew the exam would be fair, and the employee failed to plausibly allege that the parties to the contract “intended to confer legally enforceable rights on the test takers.”