HOSEA WORD, Plaintiff-Appellant, v. CITY OF CHICAGO, et al., Defendants-Appellees.
No. 19-1320
United States Court of Appeals For the Seventh Circuit
ARGUED DECEMBER 4, 2019 — DECIDED JANUARY 6, 2020
Before FLAUM, RIPPLE, and HAMILTON, Circuit Judges.
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 18-cv-00141 — Sharon Johnson Coleman, Judge.
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 sergeant 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 Williams. According to Word, each of these men’s “wives or paramours” were CPD sergeants who took the 2015 exam and then received promotions. Word alleges that defendant Williams 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.
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 under
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 inferences 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 differently than the “wives and paramours” (and further sufficiently 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 between the City and the exam administrator. None of his arguments 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-
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, 643 N.E.2d 255, 262 (Ill. App. Ct. 1994), 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. 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. 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
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 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 examination for such preferment. In Bigby v. City of Chicago, 766 F.2d 1053, 1055 (7th Cir. 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. Id. at 1056. 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
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: “[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 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.
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 paramours.” Neither argument convinces, and because Word has failed to establish an underlying constitutional violation, the
1. 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.” 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 context. Word’s claim runs headlong into Engquist v. Or. Dep’t of Agric., in which the Supreme Court held that
[t]he 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.
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 liquor 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 “defendants acted with a nefarious discriminatory purpose and dis-
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. Wis. Health Fund, 397 F.3d 539, 541 (7th Cir. 2005).4 Word makes precisely this claim, and therefore we must affirm its dismissal.
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 registering, 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 explicitly 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.
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 language creating one. See Martis v. Grinnell Mut. Reins. Co., 905 N.E.2d 920, 924 (Ill. Ct. App. 2009) (“There is a strong presumption that the parties to a contract intend that the contract’s provisions apply only to them, and not to third parties.“). 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 sufficient, 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 parties.” 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 presumption exists that parties intend a contract to apply solely
III. Conclusion
For the foregoing reasons, we AFFIRM the judgment of the district court.