Cleveland Hardy v. CITY OF CHICAGO and GARRY MCCARTHY

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 4, 2018*
Decided April 5, 2018
Before
DIANE P. WOOD, Chief Judge
WILLIAM J. BAUER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 17-2138
CLEVELAND HARDY,
Plaintiff-Appellant,
v.
CITY OF CHICAGO and GARRY
MCCARTHY,
Defendants-Appellees.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 15 C 1174
Milton I. Shadur,
Judge.
O R D E R
Cleveland Hardy, an officer in the Chicago Police Department, contends that the
City and the former police superintendent, Garry McCarthy, violated his right to due
process by removing him from the position of sergeant without a hearing. He worked
as a sergeant for about a week before the City discovered that he had failed the
promotional exam and refused to finalize his promotion. The district judge entered
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. F ED. R. APP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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summary judgment for the defendants, and we affirm. Having failed the promotional
exam, Hardy had not acquired a property interest in the sergeant’s position. So the
city’s removal of him from that position without a hearing did not offend due process.
Hardy knows McCarthy personally. After McCarthy became Superintendent in
2011, Hardy was one of his two drivers for roughly three years. When the police
department announced openings for the sergeant position, McCarthy and Hardy
discussed the possibility of Hardy applying. Command staff below the rank of deputy
superintendent could nominate a candidate for this promotion as long as the candidate
had passed an exam administered in 2006. (This requirement arose from the city’s
adoption of a Hiring Plan in response to Shakman v. Democratic Organization of Cook
County, No. 69 C 2145 (N.D. Ill. filed Oct. 17, 1969).) The exam’s announcement
reiterated that to be eligible for promotion to sergeant, candidates must pass the exam.
It also said that “[a]t any time during the examination process, the Department of
Human Resources and the Chicago Police Department reserve the right to modify the
… qualifications deemed appropriate to evaluate applicants for this position.”
Hardy failed the exam. He says that he never told McCarthy that he failed, and
McCarthy did not check to see whether Hardy passed the exam. But McCarthy asked
his chief of staff to “see if you could get Cleve that nomination [for promotion] if it’s
available.” The chief of staff turned to Commander Jonathan Johnson, who also did not
check whether Hardy had passed the exam. Johnson nominated Hardy for promotion
and submitted Hardy’s application packet to the city’s Merit Selection Board for review.
The Board did not recommend Hardy for promotion, but he briefly became a
sergeant anyway after McCarthy interviewed nominees and selected Hardy for one of
the openings. Hardy later attended and graduated from sergeant training at the Police
Academy. Roughly a week after Hardy started work as a sergeant and purchased the
sergeant’s uniform for $3,000, the city’s Human Resources Department noticed that he
had not passed the sergeant’s exam. Once this department caught the error, it alerted
the police department’s human-resources office that Hardy had not passed the test. The
police department told Hardy that he could not be a sergeant and cancelled his
promotion.
After the police department withdrew Hardy’s promotion, the First Deputy
Superintendent told him that the City had not always enforced the requirement that
sergeant applicants pass the exam. According to Hardy, the First Deputy said “there are

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a lot of people on this job that did not have all qualifications and the superintendent
made the decision, because he can, to promote [sic] … I know a guy right now that
didn’t even take a test at all, by the name of Jerry Masterson.”
Hardy turned to federal court, suing the City and McCarthy under 42 U.S.C.
§ 1983 for allegedly depriving him of his property interest in his promotion to sergeant
without due process in violation of the Fourteenth Amendment. During discovery
Hardy sought from the City all documents relating to Masterson’s promotion to
sergeant, which occurred 11 years earlier. After a magistrate judge ordered the City to
turn them over, the City responded that it had no records of Masterson’s exam
performance. This prompted Hardy to ask the magistrate judge to bar the City from
disputing that it allowed sergeants to retain their positions even when the City later
found that they never qualified. The magistrate judge denied the motion but made two
rulings. The judge prohibited the City from contending that Masterson was qualified for
his promotion to sergeant. And the judge ruled that if the district judge found that
Masterson’s promotion was relevant to Hardy’s case, Hardy could ask the district judge
for “any inference in his favor.” Hardy never asked for any inference.
The City and McCarthy moved for summary judgment, and the district judge
granted their motions. A reasonable factfinder could not conclude, the judge said, that
Hardy had acquired a property interest in his promotion to sergeant. The judge
explained that, because Hardy had not passed the exam, the promotion “was never
lawfully his.” And the judge rejected as hearsay Hardy’s assertion that the First Deputy
told him that the police department hired Masterson as a sergeant even though he did
not pass the exam. Therefore, the judge ruled, Hardy did not establish a triable question
on whether the City has ignored the exam requirement.
On appeal Hardy asserts that he established a triable question about whether he
had a property interest in his promotion. A plaintiff’s appointment to a police force
does not create a property interest in that position if the plaintiff concedes that he did
not meet a requirement for hiring. See Bailey v. City of Lawrence, 972 F.2d 1447, 1449
(7th Cir. 1992). This principle follows from the general rule that when a plaintiff
concedes that he lacks the factual basis necessary for a property interest, due process is
not implicated. See Codd v. Velger, 429 U.S. 624, 627–28 (1977). Hardy admits that he did
not pass the 2006 sergeant’s exam. Under the Hiring Plan and announcement for that
exam, passing was a requirement for becoming a sergeant. The City therefore could

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remove him from a position for which he admits he was never qualified without
offending due process.
Hardy responds that he was qualified because McCarthy could and did
“overrule” the exam requirement. McCarthy did so, Hardy contends, by asking Johnson
to nominate Hardy for promotion, by choosing Hardy for promotion, and by thus
exercising his right “to modify” the qualifications for sergeant, as Hardy believes the
exam’s announcement allowed. But for two reasons, this argument is unpersuasive.
First McCarthy told his chief of staff only to see “if” he could get Hardy a promotion
nomination “if” it was available. Hardy presented no evidence suggesting that
McCarthy or anyone in his chain of command ever knew that Hardy did not pass, let
alone that McCarthy ordered Hardy promoted even if he had failed. Second McCarthy
could not “overrule” the requirement that Hardy pass the exam. To the contrary, as
stated in the 2006 exam announcement that Hardy relies on, the police department
could “modify” the qualifications for sergeant only “during the examination process.”
That process ended long before McCarthy became Superintendent in 2011.
Hardy offers two alternative arguments that are also unavailing. First he argues
that even if his promotion were invalid, a reasonable factfinder could conclude that he
acquired a property interest in the job because he graduated from the Police Academy,
worked as a sergeant for over a week, and was chosen by McCarthy for promotion. But
given the requirement that he pass the exam, his awareness that he had failed it, the
lack of evidence that McCarthy could or did abolish the requirement, and the fact that
the City did not put him on the payroll as a sergeant, his reliance on a personnel
mistake was unreasonable and did not create a property interest. See Forgue v. City of
Chicago, 873 F.3d 962, 970 (7th Cir. 2017); Wolf v. City of Fitchburg, 870 F.2d 1327, 1334
(7th Cir. 1989) (ruling that property interests cannot arise from “representations of
government officials who are not authorized to make such representations”).
Second Hardy argues that a reasonable factfinder could conclude that the city’s
history of “loosely and subjectively” applying the exam requirement, which he
contends is reflected in the case of Masterson, created a property interest in his position.
For proof, he says that the First Deputy Superintendent said that Masterson became a
sergeant even though he did not take the exam. But as the district judge correctly noted,
Hardy’s statement is offered for the truth of the matter that he says the First Deputy
asserted and is therefore inadmissible hearsay. See F ED. R. EVID. 801(c), 802. To avoid the
hearsay problem, Hardy could have proffered sworn testimony from the First Deputy,

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but did not. He also could have asked the district judge to infer from the city’s failure to
produce Masterson’s test records that Masterson was promoted despite never passing
the exam. But he did not do this either. Although Hardy complains on appeal about the
City not producing Masterson’s test records, it is too late now to argue for such an
inference here. See Puffer v. Allstate Ins. Co., 675 F.3d 709, 718 (7th Cir. 2012) (“It is a well-
established rule that arguments not raised to the district court are waived on appeal.”).
AFFIRMED

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