Hosea Word v. City of Chicago ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-1320
HOSEA WORD,
Plaintiff-Appellant,
v.
CITY OF CHICAGO, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 18-cv-00141 — Sharon Johnson Coleman, Judge.
____________________
ARGUED DECEMBER 4, 2019 — DECIDED JANUARY 6, 2020
____________________
Before FLAUM, RIPPLE, and HAMILTON, Circuit Judges.
FLAUM, Circuit Judge. Plaintiff Hosea Word is a sergeant
and aspiring lieutenant in the Chicago Police Department
(CPD). Having just missed out on a promotion following the
2006 lieutenants’ examination, Word missed the cut again af-
ter receiving a lower-ranking score on the 2015 examination.
Word alleges that high-ranking members of CPD leadership
connived to sneak early test content to their “wives and para-
mours” prior to the 2015 exam, resulting in those romantic
2 No. 19-1320
partners acing the test and receiving promotions. The district
court dismissed Word’s constitutional due process and equal
protection claims, as well as his breach of contract claims. Illi-
nois and federal caselaw squarely preclude Word’s case. We
affirm.
I. Background
From time to time, the CPD administered an examination
for those sergeants seeking promotion to lieutenant. While the
CPD retained discretion over whom to promote, those who
scored highest on the exam were generally first in line.
Word has served with the CPD since 2001. When he took
the departmental lieutenants’ exam in 2006, he was ranked
150th of all candidates. The sergeants ranked 1 through 149
all received promotions; Word was the highest-scoring ser-
geant who did not. In 2015, when Word next took the exam,
his ranking fell to 280th. He was passed over a second time.
The three individual defendants served as senior members
of CPD leadership: former Superintendent Eddie Johnson,
former First Deputy Superintendent Al Wysinger, and former
Chief for Bureau of Organizational Development Eugene Wil-
liams. According to Word, each of these men’s “wives or par-
amours” were CPD sergeants who took the 2015 exam and
then received promotions. Word alleges that defendant Wil-
liams had early access to the exam and provided test content
to the wives and paramours, who formed a clandestine
“study group” and cheated their way to passing scores. For
example, Word claims that Wysinger’s wife (who, like the
other women, is not named as a defendant in the complaint)
went from ranking 280th in the 2006 exam results to first in
the 2015 results.
No. 19-1320 3
Word filed his complaint in early 2018, suing the City of
Chicago, Johnson, Williams, and Wysinger. He alleged two
counts: (1) violations of equal protection and due process un-
der 42 U.S.C. § 1983; and (2) breach of contract. Defendants
moved to dismiss all counts and the district court granted
their motion in January 2019. Word timely appealed.
II. Discussion
“We review de novo a district court’s grant of a motion to
dismiss for failure to state a claim, accepting all well-pleaded
facts in the complaint as true and drawing all reasonable in-
ferences in the plaintiff’s favor.” Hutchison v. Fitzgerald Equip.
Co., Inc., 910 F.3d 1016, 1025 (7th Cir. 2018) (citation omitted).
Word appeals the dismissal of each of his claims and offers
multiple rationales for reversing the district court. He argues
that he had a constitutionally protected property interest in a
fair lieutenants’ examination; that he established an equal
protection claim because he was irrationally treated differ-
ently than the “wives and paramours” (and further suffi-
ciently alleged Monell liability); and that he has cognizable
breach of contract claims based on (1) a “contract” created by
his “accepting the city’s offer” of a fair examination and
(2) purported third-party beneficiary status in a contract be-
tween the City and the exam administrator. None of his argu-
ments are persuasive.
A. Due Process
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 lan-
4 No. 19-1320
guage that “[n]o person or officer shall … wilfully or cor-
ruptly 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, be-
ing appointed, employed or promoted.” 65 Ill. Comp. Stat.
§ 5/10-1-26. Word contends this statute “creates a protectable
property interest in fair civil service examinations, and specif-
ically 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. Bd. of Fire & Police Comm’rs of the Vill. of Lake Zurich,
the Illinois Appellate Court held that a village’s process for
hiring paramedics was subject to state judicial review under
Illinois’s Administrative Review Law. 643 N.E.2d 255, 262 (Ill.
App. Ct. 1994). Per Word, Mueller shows that “Illinois law rec-
ognizes 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 prop-
erty as a concept formed no basis for its conclusions.
Likewise, Word’s reference to Peoria Police Sergeants v. City
of Peoria Bd. of Fire & Police Comm’rs, 574 N.E.2d 1240 (Ill. App.
Ct. 1991), is not relevant. There, the Illinois Appellate Court
held that a city’s promotional procedure violated 65 Ill.
Comp. Stat. § 5/10-2.1-15, which required police and fire
boards to “provide for promotion in the fire and police de-
partments on the basis of ascertained merit and seniority in
service and examination.” Id. at 1241, 1243. Peoria says noth-
ing about a constitutionally protected property interest.
No. 19-1320 5
Word argues that cases and statutes need not “contain lan-
guage 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
non-existence.
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 exam-
ination for such preferment. In Bigby v. City of Chicago, a group
of police sergeants challenged an earlier version of the lieu-
tenants’ examination as arbitrary and capricious, and thus vi-
olative of due process. 766 F.2d 1053, 1055 (7th Cir. 1985). We
held that while a police officer had a property interest in re-
taining his job, he had no such interest in an unattained higher
rank. Id. at 1056. Concomitant with this conclusion, we also
ruled that there is no constitutionally protected property in-
terest 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 senior-
ity in service and examination.’” Id. (quoting 65 Ill. Comp.
Stat. § 5/10-2.1-15). “The statute and ordinance create an ex-
pectation 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. 1
1
This holding is consistent with those of our sister circuits. See, e.g.,
McMenemy v. City of Rochester, 241 F.3d 279, 287 (2d Cir. 2001) (“Although
6 No. 19-1320
Word tries to distinguish himself from the sergeants in
Bigby on the ground that he does not claim to possess a prop-
erty 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: “[I]t 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 of-
fers no compelling arguments for doing so. As we and other
courts have held, state law does not provide a property inter-
est in state promotional procedures.
B. Equal Protection
Word also claims that the defendants’ actions violated his
equal protection rights and that the City is liable under Monell
v. Dep’t of Soc. Servs. 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 para-
mours.” Neither argument convinces, and because Word has
failed to establish an underlying constitutional violation, the
New York State law clearly requires a ‘competitive’ examination, the law
does not create a cognizable property interest in a competitive examination.
An examination is not an end in itself; it has value only because it may
lead to something valuable.”); Teigen v. Renfrow, 511 F.3d 1072, 1080–81
(10th Cir. 2007) (“The subtle distinction between the right to be selected
for promotion and the right to take part in the promotion process is insuf-
ficient to salvage Plaintiffs’ due process claims. … [I]t is well established
that an entitlement to nothing but procedure cannot be the basis for a
property interest.”) (citation omitted).
No. 19-1320 7
district court appropriately dismissed his Monell claim. See
King v. East St. Louis School Dist. 189, 496 F.3d 812, 817 (7th Cir.
2007) (“It is well established that there can be no municipal
liability based on an official policy under Monell if the policy
did not result in a violation of [a plaintiff's] constitutional
rights.”).
1. Arbitrary and Irrational Treatment
Word argues that the Equal Protection Clause protects in-
dividuals 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 success-
ful equal protection claims brought by a ‘class of one,’ where
the plaintiff alleges that she has been intentionally treated dif-
ferently from others similarly situated and that there is no ra-
tional basis for the difference in treatment.” Vill. of Willowbrook
v. Olech, 528 U.S. 562, 564 (2000). 2
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 con-
text. Word’s claim runs headlong into Engquist v. Or. Dep’t of
Agric., in which the Supreme Court held that
2 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 n.* (“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.”).
8 No. 19-1320
[t]he question in this case is whether a public
employee can state a claim under the Equal Pro-
tection Clause by alleging that she was arbitrar-
ily treated differently from other similarly situ-
ated employees, with no assertion that the dif-
ferent treatment was based on the employee’s
membership in any particular class. We hold
that such a “class-of-one” theory of equal pro-
tection has no place in the public employment
context.
553 U.S. 591, 594 (2008). Word has not provided any argument
against the application of Engquist. Furthermore, his citation
to Esmail v. Macrane is misplaced, as that case addressed a liq-
uor store owner’s dispute with a mayor, having nothing to do
with public employment. 53 F.3d 176, 177–78 (7th Cir. 1995). 3
2. 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 “defend-
ants acted with a nefarious discriminatory purpose and dis-
3 We do wish to correct one statement in the district court’s opinion,
which cited Moore v. Muncie Police & Fire Merit Comm’n, 312 F.3d 322, 326
(7th Cir. 2002), for the proposition that “Word must establish that the de-
fendants deprived him of a protected property interest” under either a due
process or equal protection claim. But Moore only addresses due process,
not equal protection claims; equal protection claims do not require show-
ing deprivation of a property interest.
No. 19-1320 9
criminated against him based on his membership in a defina-
ble class.” Nabozny v. Podlesny, 92 F.3d 446, 453 (7th Cir. 1996)
(internal citation omitted).
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 rela-
tionship with a CPD executive. Such an allegation does not
suffice to state an equal protection claim:
A male executive’s romantically motivated fa-
voritism 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 bet-
ter, 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 … . Nei-
ther in purpose nor in consequence can favorit-
ism resulting from a personal relationship be
equated to sex discrimination.
Preston v. Wis. Health Fund, 397 F.3d 539, 541 (7th Cir. 2005). 4
Word makes precisely this claim, and therefore we must af-
firm its dismissal.
4 Preston concerns a Title VII claim, but its logic applies with equal
force here. “Our cases make clear that the same standards for proving in-
tentional discrimination apply to Title VII and § 1983 equal protection.”
Williams v. Seniff, 342 F.3d 774, 788 n.13 (7th Cir. 2003) (citations omitted).
10 No. 19-1320
C. Breach of Contract
Word states that he sufficiently alleged breach of contract
claims for two reasons: (1) he and the City had a contract for
the fair administration of a lieutenants’ examination; and
(2) he is a third-party beneficiary of the contract between the
City and the exam’s administrator. Both fall short of the mark.
1. Direct Breach
Word’s complaint alleges that “the City offered Sergeant
Word a fairly administered lieutenant’s examination free of
cheating” and that “Word accepted the City’s offer by regis-
tering, paying money, studying, and sitting” for the exam. But
as in the district court, Word cannot identify any actual offer.
“The test for an offer is whether it induces a reasonable
belief in the recipient that he can, by accepting, bind the
sender.” Architectural Metal Sys., Inc. v. Consol. Sys., Inc., 58
F.3d 1227, 1229 (7th Cir. 1995) (citing McCarty v. Verson Allsteel
Press Co., 411 N.E.2d 936, 943 (Ill. Ct. App. 1980)). Word has
not identified any statement, oral or written, that constitutes
a contractual offer. He has merely alleged the legal conclusion
that there was a contract.
The only statement of the defendants identified in the
briefing is the announcement of the examination, which ex-
plicitly states that it is not “an offer of promotion.” Word
again tries to distinguish his right to promotion and to a fair
examination, but even if we were to accept such a dichotomy,
the announcement still would contain no language which
would “induce[] a reasonable belief in” Word that he could
bind the City by acceptance. Id.
No. 19-1320 11
2. Third-Party Beneficiary
Finally, Word posits that he can bring a breach-of-contract
claim as the third-party beneficiary of a contract between the
City and its examination administrator. In Word’s view, the
City and the administrator had contracts that prohibited
cheating and contained confidentiality requirements, and
considering the totality of the circumstances, these contracts
are clearly meant to benefit good-faith test-takers like Word.
Illinois law, however, strongly disfavors finding that a
third-party beneficiary relationship exists absent express lan-
guage creating one. See Martis v. Grinnell Mut. Reins. Co., 905
N.E.2d 920, 924 (Ill. Ct. App. 2009) (“There is a strong pre-
sumption that the parties to a contract intend that the con-
tract’s provisions apply only to them, and not to third par-
ties.”). As the Martis court explained, “[a]n individual not a
party to a contract may only enforce the contract’s rights
when the contract’s original parties intentionally entered into
the contract for the direct benefit of the individual.” Id.
Word suggests that the City knew it would only have an
applicant pool for the exam if aspiring sergeants knew the
exam would be fair and no cheating would occur. Therefore,
the City’s contract with the administrator effectively treated
the applicant pool as third-party beneficiaries. This is not suf-
ficient, however, to demonstrate the existence of third-party
beneficiaries under Illinois law. “That the contracting parties
know, expect, or even intend that others will benefit from
their agreement is not enough to overcome the presumption
that the contract was intended for the direct benefit of the par-
ties.” Id. (citation omitted); see also Bank of Am. N.A. v. Bassman
FBT, LLC, 981 N.E.2d 1, 11 (Ill. App. Ct. 2012) (“A strong pre-
sumption exists that parties intend a contract to apply solely
12 No. 19-1320
to themselves.”). Word simply has not plausibly alleged that
the city and exam administrator intended to confer legally en-
forceable rights on the test takers.
III. Conclusion
For the foregoing reasons, we AFFIRM the judgment of the
district court.