Domenic Diiulio, et al., Plaintiffs-appellants, v. Board of Fire and Police Commissioners of the City Ofnorthlake, et al., Defendants-appellees, 682 F.2d 666 (7th Cir. 1982)

At issue in this case is the constitutional validity of an examination required for the promotion of appellants, police patrolmen, to the position of police sergeant.¹ 

* In our appraisal of appellants' claims we must accept their version of the facts properly before the district court because that court granted summary judgment against them.²  Bishop v. Wood, 426 U.S. 341, 345, 347, 96 S. Ct. 2074, 2077, 2078, 48 L. Ed. 2d 684 (1976).

Appellants were hired prior to December 10, 1977, as police patrolmen by the Board of Fire and Police Commissioners of the City of Northlake, Illinois. Promotion within the Northlake Police Department is governed by state law and the Rules and Regulations of the Board of Fire and Police Commissioners of the City of Northlake (the Board), Ill.Rev.Stat. ch. 24, § 10-2.1-1 et seq., pursuant to which, promotions are based upon merit, seniority, and competitive examinations. In all cases where it is practicable, vacancies are to be filled by promotion. A promotion roster must be prepared based on the competitive examinations, ascertained merit, and seniority. Vacancies must be filled by one of the three candidates at the top of the roster, and a high ranking candidate cannot be passed over more than twice.

"(I)n determining next in order of rank in promotional examinations, ... (the Board) extend(s) the examination successively through all the orders of rank in the services in an endeavor to qualify suitable eligible or eligibles for the vacancy or vacancies existing before extending the examination to the general public." And "(n)o examination shall be given if a vacancy exists at that time and an eligibility list is in existence." The names of candidates on the promotional roster may be removed by the Board after two years only if all existing vacancies are filled prior to cancellation. Ill.Rev.Stat. ch. 24, § 10-1-13.

The competitive written promotional exam accounts for 55% of the total score in the promotional scheme.³  A score of 70 is required to pass the written exam. It is statutorily provided that the examination shall be conducted by the Board and that the "examinations shall be practical in character and relate to the matters which will fairly test the capacity of the persons examined to discharge the duties of the positions to which they seek (promotion)." Ill.Rev.Stat. ch. 24, § 10-2.1-6.

On December 10, 1977, the Board held a promotional examination for the rank of sergeant.⁴  The plaintiffs, seeking promotion to that rank, unsuccessfully participated in said examination.⁵ 

Appellants' cause of action is based on their claim that the promotional examination was "arbitrary, capricious, and discriminatory and lacked and was devoid and not in furtherance of any substantial, rational, reasonable an (sic)/or compelling, relationship to any legitimate promotional scheme for the rank of sergeant, purpose or objective, in violation and derogation of due process of law and the equal protection of the laws guaranteed under the Fourteenth Amendment ... because it was not validated nor job related."⁶  This case is not moot as we cannot state with assurance that there is no reasonable expectation that the alleged violation will recur, nor have interim relief or events completely and irrevocably eradicated the effects of the alleged violation. County of L. A. v. Davis, 440 U.S. 625, 631, 99 S. Ct. 1379, 1383, 59 L. Ed. 2d 642 (1979).

II

To satisfy the prerequisite for an assertion of the constitutional requirements of due process, a party must implicate a protected interest in either life, liberty, or property. Board of Regents v. Roth, 408 U.S. 564, 569, 570, 571, 92 S. Ct. 2701, 2705, 2706, 33 L. Ed. 2d 548 (1972). The district court disposed of appellants' due process claim by concluding that since state law does not grant appellants "a proprietary interest in a validated or otherwise certified job-related promotional examination, it is clear that no constitutionally protected interests are involved in the present matter." We believe that the district court's sole focus on a property interest without regard to a liberty interest was in error. Appellants' promotion was not a matter subject to the Board's grace, nor was it a matter left to the unfettered discretion of the Board. Compare, Board of Regents v. Roth, 408 U.S. at 567, 92 S. Ct. at 2704. As we explained in Part I, the promotion scheme was based on evaluation of merit, seniority, and competitive examination. While the state can require high standards of qualifications, these standards must have a rational connection with the applicant's fitness or capacity to be a police sergeant. Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S. Ct. 752, 1 L. Ed. 2d 796 (1957). Attaching unreasonable and arbitrary requirements is violative of constitutional due process. Smith v. Texas, 233 U.S. 630, 639, 34 S. Ct. 681, 683, 58 L. Ed. 1129 (1914); Smith v. Alabama, 124 U.S. 465, 480, 8 S. Ct. 564, 570, 31 L. Ed. 508 (1888); State v. Walker, 48 Wash. 8, 92 P. 775 (1907).⁷  In the instant case, at issue is not the state's right to require an examination, but the rational relation between the particular questions formulating the examination and the functions of the job of police sergeant. We hold that appellants have sufficiently implicated a liberty interest in promotion which cannot be denied without constitutional due process.⁸ 

While the state may test a person for the job, it may not test a person in the abstract. Constitutional due process guarantees that no person will be arbitrarily deprived by the government of his liberty to engage in any occupation. "(T)he liberty guaranteed by the Fourteenth Amendment ... without doubt ... denotes not merely freedom from bodily restraint but also the right of the individual ... to engage in any of the common occupations of life ...." Meyer v. Nebraska, 262 U.S. 390, 43 S. Ct. 625, 67 L. Ed. 1042 (1923), cited in Board of Regents v. Roth, 408 U.S. at 572, 92 S. Ct. at 2706; Hampton v. Mow Sun Wong, 426 U.S. 88, 102, 96 S. Ct. 1895, 1904, 48 L. Ed. 2d 495 (1976); Truax v. Raich, 239 U.S. 33, 41, 36 S. Ct. 7, 10, 60 L. Ed. 131 (1915). In Graves v. Minnesota, 272 U.S. 425, 47 S. Ct. 122, 71 L. Ed. 331 (1926), the Supreme Court upheld the constitutionality of a state statute prohibiting the practice of dentistry without a diploma from a dental college of good standing, as against the contention that the requirement violated constitutional due process. The Court did not uphold the requirement of a diploma per se, but rather the rationale for requiring a particular type of diploma in that case. As the Court stated, "clearly the fact that an applicant for a license holds a diploma from a reputable dental college has a direct and substantial relation to his qualification to practice dentistry." Id. at 428, 47 S. Ct. at 123 (emphasis added).

Similarly, at issue in the instant case is whether the particular promotion examination has a direct and substantial relation to appellants' qualifications to be police sergeants.⁹  In Konigsberg v. State Bar of California, 366 U.S. 36, 81 S. Ct. 997, 6 L. Ed. 2d 105 (1961), (Konigsberg II) the Supreme Court upheld the state's refusal to license an applicant to the bar because of his refusal to answer questions. Again Konigsberg II did not sanction the asking of any questions regardless of their rational relation to the functions of the profession. What was critical in Konigsberg II was that the particular questions at issue were found to be substantially relevant to the applicant's qualification and thus in accordance with due process guarantees. Appellants' assertion in the instant case is analogous to the assertion of an applicant for admission to the State Bar whose prior membership in the Communist party and his use of aliases were not rationally related to the qualifications required for membership in the legal profession as to serve as a rational basis for the state to deny him permission to take the bar exam. Schware v. Board of Bar Examiners, supra. In Schware the Supreme Court held that plaintiff had sufficiently asserted a liberty interest to employment guaranteed by the due process clause.¹⁰ 

III

Normally in a case such as this, where only constitutional due process interests are sufficiently asserted, a plaintiff has the burden of moving forward and the ultimate burden of proving that the state-established requirements for the employment he sought are not rationally related to the functions of the job.¹¹  The state is not constitutionally mandated to establish an examination as a requirement for promotion. Constitutional due process requires only that whatever requirements are established by the government must have a rational relation to the job's performance. Once the plaintiff puts into question the rationality of the requirements, the defendants may, but they are not constitutionally required to, articulate the rationality of the requirements by relying on the results of a professional validation study. There is no one method which is required for appropriately evaluating the relationship of an employment requirement to job performance.¹²  Washington v. Davis, 426 U.S. at 247, 96 S. Ct. at 2051.

The distinction elucidated between constitutional claims under the Fifth and Fourteenth Amendments and a Title VII claim, is crucial because, unlike under Title VII, the inquiry in the instant case, resting solely on alleged violation of constitutional due process, should not focus on the quality of a particular validation study, or on the availability of other employment selection procedures that would have a less discriminatory impact. Id. at 247-48, 96 S. Ct. at 2051. In the instant case, plaintiffs may not simply challenge the quality of the validation study without showing a lack of rational basis between the promotion requirements and a sergeant's job functions. In the due process context, there is no basis for courts to inquire as to whether or not a particular promotion method is most efficacious. And if defendants choose to articulate the rationale of the established procedures by depending on a validation study, it is not open to judicial inquiry whether a different validation study would have been superior. The judicial inquiry is over once a rational basis between the requirements and the job's functions is shown.

IV

While in the usual case the plaintiffs would have the burden of proving a lack of rational connection between the particular promotion examination and the functions of the job sought,¹³  in the instant case defendants had the burden of proving that there was no genuine issue of material fact and that they were entitled to a judgment as a matter of law because defendants moved for a summary judgment. Fed. R. Civ. P. 56. The record discloses that the defendants articulated a rational relationship between the particular questions challenged in plaintiffs' complaint and the actual job functions of police sergeants.¹⁴  In challenging the motion for summary judgment plaintiffs are not required to prove their contentions, but they are required to present enough specific facts as to raise a genuine issue as to the material issue of the rational relationship between the promotion examination questions and the job functions of police sergeants. Choudhry v. Jenkins, 559 F.2d 1085, 1089 (7th Cir. 1977). Thus it was up to the plaintiffs to raise an issue that the examination questions could not rationally gauge an examinee's ability to perform the actual functions of police sergeants, or that the asserted functions were not in fact rationally related to a police sergeant's performance. Plaintiffs could not challenge the motion for summary judgment by relying on allegations contained in their complaint or on affidavits that merely stated conclusory allegations, as did the affidavit of the plaintiffs' counsel. Fed. R. Civ. P. 56. The only other affidavit submitted by plaintiffs was one from an individual who asserted that he is qualified in psychology and has expertise in analyzing promotional tests for policemen. We conclude that this affidavit did not raise genuine issue as to a fact material to the alleged constitutional violation. The affidavit merely raised an issue as to the quality of the professional validation study conducted to evaluate the promotion examination. But as we emphasized in Part III, defendants are not constitutionally required to conduct a professional validation study of the promotion examination. The facts articulated by the defendants directly addressed the sole material issue of constitutional magnitude in this case, namely the rational relation between the contents of the examination and the job performance of police sergeants. Plaintiffs' affidavits clearly do not raise a genuine issue as to this sole material issue.

V

For the foregoing reasons, the judgment of the district court is affirmed.