Moore, Richard A. v. Muncie Police Fire

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 01-3175

RICHARD A. MOORE,

Plaintiff-Appellant,

v.

MUNCIE POLICE AND FIRE MERIT COMMISSION,

MIKE SZAKALY, DAVID EILER, et al.,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 00 C 177—Richard L. Young, Judge.

____________

ARGUED MAY 14, 2002—DECIDED DECEMBER 5, 2002

____________

Before COFFEY, MANION, and EVANS, Circuit Judges.

COFFEY, Circuit Judge. In the spring of 1996, Richard A.

Moore made application for employment with the Muncie,

Indiana, Fire Department. On May 1 of that year, at the

age of thirty-six years old, Moore completed his written

application for employment with the Fire Department.

He then surmounted the Department’s first required hur-

dle, the agility test. He also passed the written apti-

tude test, and he was successful in his oral interview. On

November 7, 1996, after Moore had completed those three

initial steps in the application process, the Institute for

2 No. 01-3175

Public Safety Personnel1 sent an eligibility list containing

Moore’s name to the Muncie Police and Fire Merit Com-

mission (Commission). The Commission is charged with

overseeing the application process and nominating can-

didates for appointment to the Muncie Fire Department.

Two years later, on November 30, 1998, Moore received

a written “Conditional Offer of Employment” from the

Department, and the Commission forwarded his applica-

tion for employment to the Muncie Firefighter’s Pension

Board for further review. The Pension Board reviews

applications and certifies that the applicant meets the

requirements for membership in the 1977 Pension and

Disability Fund (the “Pension Fund”), which is a condi-

tion precedent for employment with the Muncie Fire De-

partment pursuant to state law. See Indiana Code § 36-8-3-

21(b).

Under Indiana law, an individual may not be hired by

a municipal fire department as a firefighter (after May

31, 1985) unless he meets the conditions for membership

in the Pension Fund.2 See Indiana Code § 36-8-3-21(b).

But Indiana law also provides that only individuals

younger than thirty-six years old may become a member

of the Pension Fund. See Indiana Code § 36-8-8-7(a)(2).

Therefore, no individual making application after he has

turned thirty-six years old may be hired as a Muncie fire-

1

The Merit Commission retains the services of the Institute for

Public Safety Personnel to administer and grade the various

tests in the firefighter application process and then to compile

an eligibility list to submit to the Merit Commission. The record

does not indicate where the Institute is located.

2

“An individual may not be employed by a unit . . . as a member

of the unit’s fire department or as a member of the unit’s po-

lice department unless the individual meets the conditions for

membership in the 1977 fund.” Indiana Code § 36-8-3-21(b).

No. 01-3175 3

fighter. On December 1, 1998, the Pension Board deter-

mined that Moore—who was then beyond the age of thirty-

six—was too old to become a member of the Pension Fund.

Thus, the Commission could not appoint him as a Muncie

firefighter under Indiana law.

On January 28, 2000, Moore filed suit in the Southern

District of Indiana, alleging that the Commission’s refusal

to hire him violated 42 U.S.C. § 1983, depriving Moore

of his constitutional right to due process. However, the

court found that Moore did not have a property interest

in securing a position as a firefighter for the City of Mun-

cie, Indiana, and the judge granted Muncie’s motion for

summary judgment. Moore appealed that decision, and

we affirm.

I. Factual Background

A.

The Muncie Police and Fire Merit Commission plays

an integral role in the City of Muncie’s public admini-

stration. The Commission is responsible for hiring, dis-

ciplining, and discharging police officers and firefight-

ers, as well as for promulgating policies and procedures

within the police and fire departments themselves. In

fulfilling this responsibility, the Commission contracts

with the Institute for Public Safety Personnel to admin-

ister and grade various tests in the firefighter applica-

tion process and to compile an eligibility list for submis-

sion to the Commission. In turn, the Commission selects

new firefighters from the Institute’s list. When hiring a

new employee, however, the Commission must also secure

the approval of the Muncie Firefighter Pension Board,

which is charged with voting on matters such as the ac-

ceptance of new employees into the Pension Fund.

Although Indiana law requires that applicants for the

position of firefighter be under the age of thirty-six, from

4 No. 01-3175

January 1, 1994 through September 30, 1996 the Age

Discrimination in Employment Act, 29 U.S.C. § 621 et seq.

(ADEA), forbade any employer from refusing to hire

an individual because of the individual’s age. Thus Indi-

ana Code §§ 36-8-8-7(a)(2) and 36-8-3-21(b), which togeth-

er dictate that only individuals who are less than thirty-

six (36) years of age can apply to be firefighters, were

preempted by federal legislation, and they were ineffec-

tive from January 1, 1994. However, on September 30,

1996 Congress amended the ADEA and removed the fed-

eral prohibition of the age limitations retroactive to De-

cember 31, 1993. See H.R. 3610, Pub. L. 104-208, Div. A,

Title I, § 101(a), Sept. 30, 1996, 110 Stat. 3009-23. As a

result, Indiana municipalities could comply with the age

requirements of Indiana Code § 36-8-8-7(a)(2) when han-

dling applications dating back to December 31, 1993 with-

out violating the Federal ADEA requirements.

In light of the retroactive appeal, the Public Employees’

Retirement Fund Board (PERF)3 submitted a letter to

the Muncie Pension Board on October 24, 1997, stating

that PERF would follow a “temporary transition policy.”

The letter stated that active employees of the Depart-

ment, or potential employees who had received a condi-

tional offer of employment on or before September 30,

1996, would continue to be processed without regard to

the age limitation. It also provided that applicants who

had not received a conditional offer of employment on or

before September 30, 1996, would be denied admission

to the Pension Fund pursuant to Ind. Code § 36-8-8-7.

Thus, the Board would not disqualify those applicants

who had reached thirty-six years of age and over and who

had completed all steps in the job application process

3

The Indiana Board of Trustees of the Public Employees’ Re-

tirement Fund has final say on the acceptance of newly hired

employees into the pension fund.

No. 01-3175 5

and had received a conditional offer of employment prior

to September 30, 1996. And since Moore had not yet

received his conditional offer of employment prior to that

date,4 he failed to comply with the thirty-six year age

limit reinstated by the transition policy.

B.

We now turn to the facts surrounding Moore’s applica-

tion to become a Muncie firefighter. As stated previously,

Moore began the application process in May 1996, less

than one year after he turned thirty-six years of age.

Moore successfully completed the required agility test

on June 19, 1996, and the written aptitude test on July 20,

1996. He sat for an oral interview on September 23, 1996,

and approximately six weeks later, Moore was placed

on the fireman’s eligibility list with a ranking of seventh

(7th).

On February 7, 1997, a few months after Moore was

placed on the eligibility list and before he received any

offer of employment, the Merit Commission removed

Moore from the eligibility list because of his age. The

Commission decided that the recently amended ADEA

removed the federal prohibition on age limitations for

firefighters and thus Indiana Code §§ 36-8-3-21(b) and 36-8-

8-7(a)(2) required that Moore be less than thirty-six years

of age to qualify for membership in the Pension Fund,

which he was not. However, on October 16, 1997, R.

Thomas Parker, the director of the Pension Fund, wrote

a letter to the Commission’s attorney, stating:

We have received evidence that Mr. Moore had started

the applicant process with the Muncie Fire Depart-

4

Moore did not receive a conditional offer of employment until

November 30, 1998.

6 No. 01-3175

ment prior to the changes in the federal law regarding

A.D.E.A. on September 30, 1996.

As part of our A.D.E.A. transition policy, we will re-

view Mr. Moore’s application for membership in the

1977 Fund when we receive that document from the

local board. Our policy regarding this issue has

changed since the date of the letter to Mr. Moore on

February 7, 1997 from the Muncie Police and Fire

Merit Commission.

We wish to make clear that Parker’s letter was barren of

any promise or any reference to the fact that Moore quali-

fied for membership in the Pension Fund because of the

transition policy. Instead, Parker’s letter suggested that

the PERF would only review Moore’s application in order

that it might determine whether the transition policy

allowed him to become a member of the Pension Fund

despite the fact that his age would otherwise disqualify

him. On October 24, 1997, Moore received a letter notify-

ing him, in response to the PERF’s transition policy, that

the Commission had reinstated him, for the moment, on

the applicant eligibility list, with a ranking of one.5

While Moore waited for an offer of employment, the PERF

clarified its transition policy to the Commission. In an

April 29, 1998 letter, the PERF informed the Commission

that:

Individuals who were actively employed by a depart-

ment or who had received a written conditional offer

of employment from the hiring authority on or before

September 30, 1996, would continue to be processed

without regard to the age thirty-six (36) requirement.

5

Moore’s rank on the eligibility list rose because all of the

applicants who had previously been ranked ahead of him had

been hired during the time period that Moore had been removed

from the list.

No. 01-3175 7

Individuals who had not received a conditional offer

of employment on or before September 30, 1996, would

be denied entry into the 1977 fund pursuant to Indi-

ana Code § 36-8-8-7.

As we made clear above, Moore did not receive a con-

ditional offer of employment until November 30, 1998.

Thus, his application did not qualify for approval under

the transition policy. The Pension Board met on December

1, 1998, to review Moore’s application to the Pension

Fund, and determined that Moore was “too old to become a

member of the 1977 Fund,” having reached the age of

36 before he received a conditional offer of employment.

Moore then filed this suit under 42 U.S.C. § 1983, alleg-

ing that the Board’s refusal to appoint him to the Pen-

sion Fund deprived him of a constitutionally protected

property interest in employment as a City of Muncie,

Indiana firefighter. The trial court granted summary

judgment in favor of the defendants, City of Muncie, et al.,

ruling that Moore had failed to establish that he had

a property interest in prospective employment with the

Muncie Fire Department. Moore appeals, arguing that

the trial court committed error because the transition

policy created a “mutually explicit understanding” between

him and the defendants and thus he was entitled to be

hired as a Muncie firefighter.

II. Analysis

We review de novo the trial judge’s grant of summary

judgment. Wright v. Illinois Dep’t of Corr., 204 F.3d 727,

729 (7th Cir. 2000). Summary judgment is proper when the

“pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact

and that the moving party is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett,

8 No. 01-3175

477 U.S. 317, 322 (1986). We view the record and all

justifiable inferences drawn from it in the light most

favorable to the party against whom judgment was entered.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

In order to succeed in an action based upon 42 U.S.C.

§ 1983, a plaintiff must establish that (1) “the conduct

complained of was committed by a person acting under

color of state law”; and (2) that “this conduct deprived a

person of rights, privileges, or immunities secured by the

Constitution or laws of the United States.” Townsend v.

Vallas, 256 F.3d 664, 669 (7th Cir. 2001) (citations omitted).

In this case, Moore alleged that when the Merit Com-

mission denied his application to the Pension Fund and

removed his name from the eligibility list he was deprived

of a protected property interest—that of prospective

employment with the Muncie Fire Department—without

due process of law.

Thus, Moore’s federal constitutional claim turns upon

whether he had a property right in prospective employ-

ment in the Muncie Fire department. See, e.g., Cleveland

Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985); Board

of Regents v. Roth, 408 U.S. 564, 576-78 (1972). If, in

fact, Moore does have a legal right to employment with

the City of Muncie, Indiana, as a firefighter, then the

Merit Commission could not remove him from the eligibil-

ity list without a due process hearing. See Memphis Light,

Gas & Water Div. v. Craft, 436 U.S. 1, 11-12 (1978) (stat-

ing that “due process of law requires an opportunity

for ‘some kind of hearing’ prior to the deprivation of a

significant property interest”) (citations omitted); see also

Ulichny v. Merton Cmty. Sch. Dist., 249 F.3d 686, 699

(7th Cir. 2001); Fittshur v. Village of Menomonee Falls,

31 F.3d 1401, 1405 (7th Cir. 1994). We bear in mind that

property interests are not created by the United States

Constitution. Ulichny, 249 F.3d at 699-700. “Rather they

are created and their dimensions are defined by existing

No. 01-3175 9

rules or understandings that stem from an independent

source such as state law—rules or understandings that

secure certain benefits and that support claims of entitle-

ment to those benefits.” Roth, 408 U.S. at 577. Further, a

property interest must be based on more than merely an

“abstract need or desire for it.” Roth, 408 U.S. at 578.

We do not accept Moore’s untenable claim that he has

a property interest in prospective employment with the

Muncie Fire Department. In order to create a justifiable

and reasonable expectation of employment, and thereby

establish a property interest, there must be a “mutually

explicit understanding” between the parties. Crim v. Board

of Educ. of Cairo Sch. Dist. No. 1, 147 F.3d 535, 545 (7th

Cir. 1998). But Moore was never hired and thus his al-

legation that he had a mutually explicit understanding

with the Commission regarding future employment as a

Muncie firefighter is without merit. We have previously

held that “[t]o recognize a ‘property’ interest for an ap-

pointment to a classified position in the realm of public

employment would drastically extend the scope of the due

process clause” and we refused to make that extension.

Petru v. City of Berwyn, 872 F.2d 1359, 1363 (7th Cir.

1989); see also United States v. City of Chicago, 798 F.2d

969, 974 (7th Cir. 1986) (“We need not decide now wheth-

er an unconditional agreement for prospective employ-

ment gives rise to a protectable property right . . . .”)

We have also previously held that an employee has no

property interest in a prospective promotion, even when

placed on an eligibility or ranking list. See, e.g., United

States v. City of Chicago, 869 F.2d 1033, 1038 (7th Cir.

1989); Thomas v. Board of Examiners, 866 F.2d 225, 227

(7th Cir. 1989) (per curiam); Bigby v. City of Chicago, 766

F.2d 1053, 1056 (7th Cir. 1985).

Despite the weight of the precedent suggesting that

persons do not have property interests in prospective

employment, Moore argues that the transition policy set

10 No. 01-3175

forth by the PERF created a “mutually explicit under-

standing” between him and the Commission that he would

not be removed from the eligibility list on account of his

age. Moore’s argument is unconvincing for several reasons.

Initially, we do not agree with Moore’s assertion that

the transition policy created a “mutually explicit under-

standing” and thus created a property interest for him,

as Indiana law requires that public employers’ policies

must be adequately promulgated in order to create prop-

erty rights. See Lawshe v. Simpson, 16 F.3d 1475, 1483

(7th Cir. 1994). Moore offered no evidence that the PERF

transition policy was promulgated in any way. Moore

asserts, with scant factual support, that the transition

policy was adequately promulgated because the Merit

Commission referenced the policy in a letter that in-

formed him he had been reinstated on the applicant eligibil-

ity list. But Moore’s letter only briefly mentions that the

PERF had “changed their policy,” failing to name, much

less describe or set forth the nature and substance of

that policy. Indeed, as the trial judge correctly observed,

Moore’s only evidence of the nature and terms of the

transition policy is contained within letters that he was

never intended to receive. Moore has failed to direct us

to even one iota of evidence in the record to demonstrate

that the PERF promulgated the transition policy. Thus,

we agree with the trial court’s determination that the

transition policy fell short of creating a mutually explicit

understanding that gave rise to a property interest in

prospective employment with the Muncie Fire Department.

Moore’s claim fails for yet another reason. Even if we

were to hold that the transition policy created a mutually

explicit understanding between the parties, the policy

does not apply to Moore. Under the plain language of the

transition policy, Moore is ineligible for membership in

the Pension Fund. The transition policy, as described in

documents Moore introduced into the record, states that

No. 01-3175 11

“individuals who . . . received a written conditional offer of

employment from the hiring authority on or before Sep-

tember 30, 1996, would continue to be processed with-

out regard to the age thirty-six requirement.” The policy

further stated that those “[i]ndividuals who had not re-

ceived a conditional offer of employment on or before

September 30, 1996, would be denied entry into the Pen-

sion Fund pursuant to IC 36-8-8-7.” The Muncie Fire

Department did not extend Moore a conditional offer of

employment until November 30, 1998. In attempting to

circumvent the plain language of the transition policy,

Moore unconvincingly argues that he had completed all

the steps in the application process before September,

30, 1996. The date Moore completed the various steps in

the application process is not relevant. The transition

policy was clear in mandating that Moore receive a writ-

ten conditional offer of employment before September 30,

1996, to fall within the transition policy’s umbrella of

protection. He did not. Indeed, Moore was not even placed

on the eligibility list for hire until November 7, 1996—more

than a month later than the end of the grace period of-

fered under the transition policy.

Moore has failed to demonstrate that he had a property

interest in future employment with the Muncie Fire De-

partment, and therefore his 42 U.S.C. § 1983 claim must

fail. The judgment of the trial court is AFFIRMED.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—12-5-02