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