In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2676
JOSEPH F INCH, D AVID E. H ENSLEY,
and P ETER W. M UNGOVAN,
Plaintiffs-Appellees,
v.
B ART P ETERSON, individually and
in his official capacity, et al.,
Defendants-Appellants.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:08-cv-0432-DML-RLY—Debra McVicker Lynch, Magistrate Judge.
A RGUED D ECEMBER 9, 2009—D ECIDED S EPTEMBER 10, 2010
Before F LAUM, W ILLIAMS, and S YKES, Circuit Judges.
S YKES, Circuit Judge. This interlocutory appeal arises
from a complaint filed against the City of Indianapolis,
its law-enforcement Merit Board, and seven city officials
alleging violations of Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 1981, and 42 U.S.C. § 1983. The plain-
tiffs—three white police lieutenants—claim they were
subjected to reverse discrimination because they were
passed over for promotion to the rank of captain despite
2 No. 09-2676
ranking higher on the Police Department’s promotion
eligibility list than three African-American lieutenants
who were promoted ahead of them. The individual city
officials moved for judgment on the pleadings, claiming
qualified immunity based on the terms of a 1978
consent decree entered into by the Indianapolis Police
Department and the United States Department of Justice
(“DOJ”). They maintained that the consent decree
required them to make the promotions at issue here. A
magistrate judge disagreed and denied the motion, and
the city officials appealed.
We affirm. The 1978 consent decree does not operate
to confer qualified immunity on the city officials who
were involved in making the challenged promotions.
Nothing in that decree required them to take race into
consideration in making promotions. To the contrary,
specific language in the decree required promotions
within the Police Department to be made without regard
to race or color.
I. Background
In December 2006 the Indianapolis Police Department1
promoted 11 of its lieutenants to the merit rank of cap-
1
On January 1, 2007, the Indianapolis Police Department
was consolidated with the law-enforcement division of the
Marion County Sheriff’s Department to form the Indianapolis
Metropolitan Police Department. For purposes of this opinion,
“Police Department” refers both to the current Indianapolis
Metropolitan Police Department and the previous Indiana-
polis Police Department.
No. 09-2676 3
tain. In making these promotions, the Police Department
relied on a competitive process whereby applicants for
promotion were screened, graded on the basis of a pro-
motions exam, and then ranked on an “eligibility list.” The
top seven lieutenants on the eligibility list all received
promotions to captain. Lieutenants David Hensley,
Joseph Finch, and Peter Mungovan occupied the next
three spots on the eligibility list (numbers 8-10), yet none
of these men were promoted. Instead, three African-
American lieutenants who ranked 12th, 17th, and 26th
on the eligibility list were promoted ahead of them.2
After receiving a Notice of Right to Sue, the three lieu-
tenants brought this suit alleging that the City of Indi-
anapolis and its law-enforcement Merit Board violated
Title VII, and that seven individual city officials who
were involved in making these employment decisions
violated § 1981 and § 1983 by denying them a promo-
tion to captain solely on the basis of their race.3 The de-
fendants moved for judgment on the pleadings pursuant
to Rule 12(c) of the Federal Rules of Civil Procedure based
2
The complaint is silent as to who received the eleventh
promotion.
3
The seven individual defendants are: Bart Peterson, the former
mayor of Indianapolis; Michael Spears, Chief of the Police
Department; Frank Anderson, a member of the “Transition
Authority” that exercised control over the Police Department
during its recent consolidation; Monroe Gray, Jr., another
member of the Transition Authority; and Cordelia Burks,
Mary Maxwell, and Joseph Smith, Jr., members of the Merit
Board for the Metropolitan Law Enforcement Agency.
4 No. 09-2676
on the terms of a 1978 consent degree entered into by
the Police Department and the DOJ.4 The consent decree
settled litigation alleging that the Police Department
had engaged in a pattern of racially discriminatory em-
ployment practices that adversely affected African-Ameri-
cans. The decree was designed to eliminate the discrim-
inatory employment practices and to require the Police
Department to take certain affirmative remedial mea-
sures to improve the job prospects of African-Americans
in the Police Department.5
4
In accordance with the provisions of 28 U.S.C. § 636(c) and
Rule 73 of the Federal Rules of Civil Procedure, the parties
consented to have a magistrate judge conduct all proceedings
in the case.
5
In 2005 the DOJ filed a motion to dissolve the consent decree
on the grounds that it had fulfilled its purpose. In 2008, after the
promotions at issue in this case had already been made, the
district court approved of a joint motion to dissolve this
consent decree.
In separate litigation the DOJ brought suit against the Police
Department alleging that the Department had violated Title VII
by making promotions on the basis of race and sex, citing in
particular (among other examples) the lieutenants who are
plaintiffs in this case as instances of reverse discrimination in
the Department’s promotion decisions. The Police Depart-
ment entered into another consent decree in which, without
admitting any liability, it agreed to retroactively promote all
of the alleged victims, including the lieutenants in this case.
Instead of pursuing relief through this new consent decree,
the lieutenants elected to proceed with this lawsuit.
No. 09-2676 5
More specifically, the city officials claimed in their
motion that the 1978 consent decree conferred qualified
immunity from suit because it effectively mandated the
promotion decisions at issue here. The magistrate judge
disagreed, concluding that the consent decree did not
require—or even permit—the Police Department to
make promotions based on race. The judge noted that
although the consent decree set recruitment and hiring
goals for African-American officers, it specifically stated
that “[p]romotions shall be based upon relevant
standards and criteria which will be applied without
regard to race or color.” The judge denied the Rule 12(c)
motion in its entirety, and the individual city officials
appealed.6
II. Discussion
We have jurisdiction under the collateral-order doctrine
to hear this appeal challenging the magistrate judge’s
denial of the individual city officials’ claim of qualified
immunity. In Mitchell v. Forsyth, 472 U.S. 511, 530 (1985),
the Supreme Court held that “a district court’s denial of
a claim of qualified immunity, to the extent it turns on
an issue of law, is an appealable ‘final decision’ within
the meaning of 28 U.S.C. § 1291 notwithstanding the
absence of a final judgment.”
6
The City of Indianapolis and the Merit Board also sought
judgment on the pleadings based on the terms of the 1978
consent decree. The denial of their motion was not im-
mediately appealable.
6 No. 09-2676
District-court orders denying qualified immunity are
reviewed de novo. Carvajal v. Dominguez, 542 F.3d 561, 566
(7th Cir. 2008). Because this case comes to us following
the denial of a Rule 12(c) motion for judgment on the
pleadings, we construe the allegations in the complaint
in the light most favorable to the plaintiffs, Buchanan-
Moore v. County of Milwaukee, 570 F.3d 824, 827 (7th Cir.
2009), and ask two questions: (1) Do the facts alleged
show that a constitutional right was violated, and (2) was
the right in question sufficiently well established that a
reasonable officer would have been aware of it? Saucier
v. Katz, 533 U.S. 194, 200 (2001); Narducci v. Moore,
572 F.3d 313, 318 (7th Cir. 2009). Under Pearson v. Callahan,
129 S. Ct. 808, 812 (2009), we need not consider these
questions sequentially, but in this case, it makes sense
to do so.
In denying the defendants’ claim of qualified immunity,
the magistrate judge concluded that the lieutenants had
adequately alleged a violation of their right to equal
protection in their employment, that this right was suf-
ficiently well established in 2006 when the promotions
in question took place, and that the 1978 consent decree
did not require the City to make promotions based
on race. These determinations were sound.
“Race-conscious employment decisions made by the
state are presumptively unconstitutional and will satisfy
the requirements of equal protection only where they
are consistent with strict scrutiny.” Alexander v. City of
Milwaukee, 474 F.3d 437, 444 (7th Cir. 2007); see also
Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995)
No. 09-2676 7
(“[W]e hold today that all racial classifications, imposed
by whatever federal, state, or local governmental actor,
must be analyzed by a reviewing court under strict scru-
tiny.”); City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493-
94 (1989) (holding that the standard of review under
the Equal Protection Clause is not dependent on the
race of those burdened or benefitted by a particular
classification). The lieutenants alleged in their com-
plaint that they were passed over for promotion in favor
of three black lieutenants despite ranking higher on the
Police Department’s merit-based “eligibility list” than
those who received promotion. A racial classification
having been identified, it is the defendants’ burden
to prove that the classification satisfies strict scrutiny,
Alexander, 474 F.3d at 444-45, a burden rarely carried at
the pleadings stage. The lieutenants’ complaint thus
sufficiently alleges a constitutional violation. As for the
second inquiry, it is well established under Croson and
Adarand that racial classifications undertaken by gov-
ernmental officials are constitutionally suspect and
subject to strict scrutiny. Id. at 446-47.
The city officials do not challenge this basic analysis.
They argue instead that they are entitled to qualified
immunity because their actions were compelled by the
1978 consent decree. They cite the Eighth Circuit case of
Martinez v. City of St. Louis, 539 F.3d 857 (8th Cir. 2008),
for the proposition that employment decisions made
in accordance with a court-approved consent decree
cannot form the basis of an unlawful discrimination
action seeking damages. As a fallback position, they
contend that at the very least, as of 2006 it was not
8 No. 09-2676
clearly established that a municipal employee might
face liability for mere compliance with a consent decree.
Both of these arguments are based on a faulty factual
premise—namely, that the consent decree required the
use of race as a criterion for promotion within the
Police Department.
The 1978 consent decree is a comprehensive agreement
designed to remedy unlawful racial discrimination
and correct underrepresentation and underutilization of
African-Americans in the Police Department.7 It is true
that some sections of the 30-page decree permit the
Police Department to take race into account when
making certain employment decisions. For instance,
Section IV, which covers “Recruitment and Hiring,”
requires the Police Department, at least initially, to
ensure that African-Americans constitute at least 25% of
all future training classes for incoming officers.8 This
section of the decree also contains general language
establishing a “long-range goal” of “increas[ing] the
black composition of the Police and Fire Departments
so that it more nearly reflects the racial and ethnic compo-
sition of the work force of the City of Indianapolis.”
Section X, titled “Job Assignments,” is designed to
eliminate race-based work assignments; it states that
“duties, job assignments and transfers given to any indi-
7
The consent decree also applied to the Indianapolis Fire
Department.
8
This requirement was subject to the existence of a suf-
ficiently large pool of African-American applicants.
No. 09-2676 9
vidual officer are not to be based solely upon any indi-
vidual’s race or color.” Importantly here, the consent
decree is quite clear that race shall have no place in
the promotions process. Promotions are addressed in
Section IX, and that section contains language specif-
ically mandating that “[p]romotions shall be based upon
relevant standards and criteria which will be applied with-
out regard to race or color.” (Emphasis added.)
Faced with this unmistakable directive, the city
officials contend that they were more generally required
to take appropriate remedial actions—including actions
that were directly motivated by racial considerations—in
order to effectuate the overall purposes of the consent
decree, i.e., to increase the number of African-Ameri-
cans throughout all levels of the Police Department.
They insist that this reading is the only one that “harmo-
nizes” all of the consent decree’s key provisions. Their
argument hinges on the “Goals” subsection of Section IX
of the decree, which states in relevant part:
As a long-term goal, [the Police Department] agree[s]
to adopt and seek[s] to achieve a goal of promoting
blacks to the ranks of Sergeant, Lieutenant and
Captain within the Police Department . . . so as to
attain a percentage within those ranks which is rea-
sonably representative of the percentage in the
ranks from which promotions are traditionally
made, the black percentages of which will begin to
increase under the provisions of this Decree relative
to the recruitment and hiring of police officers . . . .
The city officials ask us to read this provision in con-
junction with an earlier provision which provides that
10 No. 09-2676
“[r]emedial actions and practices required by the terms
or permitted to effectuate and carry out the purposes
of this Decree shall not be deemed discriminatory . . . .”
They maintain that these two sections, when read
together, required—or at least authorized—the adjust-
ment of the eligibility list on the basis of race in order
to guarantee that a “reasonably representative” number
of African-Americans were promoted to captain. The
trouble with this argument is that it runs headlong into
the consent decree’s explicit prohibition against using
race in making promotion decisions.
The defendants also contend that the consent decree
would be rendered internally inconsistent if Section IX’s
prohibition on using race as a promotion criterion is
read as an absolute bar against any race-based decision-
making in the promotions context. This argument is
unconvincing. We find no inconsistencies in the lan-
guage of the various provisions; in fact, the framework
the decree establishes is quite logical.
Three critical elements of the consent decree work
to ensure that African-Americans are promoted to ser-
geant, lieutenant, and captain at a reasonable rate.
First, Section IV requires that the pool of applicants for
these various positions (i.e., officers in the Police Depart-
ment) include a “reasonably representative” number of
African-Americans. Second, Section X requires the Police
Department to refrain from using race as a factor when
handing out job assignments; among other things,
this provision assures that African-American officers
are not routinely excluded from work assignments
No. 09-2676 11
likely to lead to promotion. Finally, the consent decree
requires that the “promotional selection device[s]”
adopted by the Police Department be racially neutral.
More specifically, Section IX(D) mandates that any pro-
motional screening tool “may not be used more than
one (1) time if it has an adverse effect on blacks and it
is not shown to be properly validated in accordance
with applicable federal guidelines.”
If the Police Department were permitted to adjust the
results of any promotional test, ex post, in order to ad-
vantage African-American officers, Subsection IX(D)
would be of little use because the results of any
offending test could simply be manipulated after the
fact in order to produce the desired outcome. Properly
understood, Subsection IX, read as a whole, operates
to prohibit so-called “race-norming” in promotions.
Accordingly, we agree with the magistrate judge that
the consent decree did not require the use of race as a
factor in making promotion decisions. The individual
defendants are not entitled to qualified immunity
from suit.
A FFIRMED.
9-10-10