Ellebracht v. Police Board of the Metropolitan Police Department

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

No. 97-1339

*
Gerald Ellebracht; Thomas *
Majda, Sr.; Robert Maschmeier; *
Steven McAnally; Matthew *
Rodden; Robert Stewart, *
*
Plaintiffs-Appellants, *
*
v. * Appeal from the United
* States District Court
Police Board Of The * for the Eastern District
Metropolitan Police Department * of Missouri.
Of The City Of St. Louis; *
Freeman Bosley, Jr., *
Individually and as a Police *
Board Member; Anne-Marie *
Clarke, Individually and as a *
Police Board Member; Charles *
Mischeaux, Individually and as *
a Police Board Member; James *
Conway, Individually and as a *
Police Board Member; Robert *
Haar, Individually and as a *
Police Board Member; Matthew J. *
Padberg, Individually and as a *
Police Board Member, *
*
Defendants-Appellees. *

Submitted: November 20, 1997

Filed: February 24, 1998

Before FAGG, Circuit Judge, HANSEN, Circuit Judge, and PIERSOL,* District
Judge.

*
The HONORABLE LAWRENCE L. PIERSOL, United States
District Judge for the District of South Dakota, sitting
by designation.
PIERSOL, District Judge.

In this action brought under 42 U.S.C. § 1983, six St. Louis,
Missouri, police officers appeal the district court's1 grant of summary
judgment in favor of the Police Board of the Metropolitan Police Department
of the City of St. Louis and the individual members of the Board--Freeman
Bosley, Jr., Anne-Marie Clarke, Charles Mischeaux, James Conway, Robert
Haar, and Matthew Padberg (hereinafter collectively called the "Police
Board"). The district court rejected a claim that the Police Board
violated appellants' equal protection rights by promoting to the position
of sergeant in the 1993/94 promotion cycle, from the pool of candidates
similarly situated to appellants in fitness and merit, only those
candidates with familial and political connections. For the reasons stated
below, we affirm.

We review a district court's grant of summary judgment de novo.
Association of Residential Resources in Minnesota, Inc. v. Gomez, 51 F.3d
137, 140 (8th Cir. 1995). A district court should grant summary judgment
only when there are no genuine issues of material fact for trial and the
moving party is entitled to judgment as a matter of law. Id. Here, the
parties agree that the only question before us is whether the district
court correctly analyzed the appellants' equal protection claim under the
applicable rational relationship standard. See Crain v. Board of Police
Comm'rs, 920 F.2d 1402, 1408 (8th Cir. 1990).

The Police Board decides who will be promoted from the rank of police
officer to sergeant. Under the Police Board's promotion policy and
procedure, every other year a Promotion Eligibility List is prepared, with
candidates ranked according to weighted scores

1
The Honorable Catherine D. Perry, United States District
Judge for the Eastern District of Missouri.

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from certain written and oral tests. Statistically similar scores are then
placed together in "clusters," with the "A-Cluster" containing the highest-
scoring candidates, the "B-Cluster" the next highest-scoring group, the "C-
Cluster" the next highest-scoring group and so on. All scores within a
cluster are treated as equivalent for purposes of promotion. The cluster
assignment is valid for two years and may not be changed without
exceptional circumstances that affect a candidate's capacity to perform the
duties of a higher rank. These six appellants were among thirty-seven
officers in the "C-Cluster" for the 1993/94 promotion cycle.

All members of higher-ranking clusters must be promoted before
members of the next cluster may become eligible for promotion. The chief
of police may recommend candidates to the Police Board for promotion, but
he may not recommend a candidate from a lower cluster until all candidates
in a higher cluster are promoted. The promotion policy does not require
the chief's recommendation before the Police Board can promote a particular
candidate, but that candidate must be within a cluster eligible for
promotion.

The Police Board members, upon appointment by the Missouri Governor,
are required to affirm that no appointment or removal of any police officer
will be made on "account of political opinions" or "for any other cause or
reason than the fitness or unfitness of such persons, in the best judgment
of such commissioners[.]" Mo.Rev.Stat. § 84.040. The Police Board adopted
Rule 8.200 of the Police Manual, setting forth its policy that promotion
of police officers "shall be made according to fitness and merit, as
determined by the Board." Police Manual Rule 7.004(l), known as "Rule L,"
provides that a police officer shall be subject to disciplinary action for
"[s]oliciting or accepting the aid of any person or knowingly permitting
any person to influence hiring, promotion or transfer on the member's
behalf, except by established procedures relating to request for transfer."

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 St. Louis Chief of Police Clarence Harmon interpreted "Rule L" to
prohibit police officers from contacting individual Police Board members
for the purpose of furthering their own chances for promotion. Chief
Harmon testified he would be duty-bound to pursue disciplinary action if
he could "show concretely" that an officer had tried to influence a Police
Board member on the officer's promotion. He did not take disciplinary
action against any officer, however, because no officers were specifically
named to him as having violated "Rule L". Chief Harmon told the Police
Board on various occasions that he felt it was inappropriate for Police
Board members to make contact with police officers about their pending
promotions.

Police Board members disagreed with Chief Harmon's position, and
informed him that, in their best judgment, receipt of information about
promotion candidates or occasional contacts with promotion candidates were
helpful in supplementing the information presented to the Board members
about the candidates. Police Board members were aware of "Rule L," but did
not think the rule applied to them. They felt it was their duty to
maintain an open door policy and to listen to any police officer or
interested party who wished to approach the Police Board on any matter.

Appellants brought suit to challenge six promotions made from "C-
Cluster" in 1994. Effective February 15, 1994, the Police Board, on Chief
Harmon's recommendation, promoted John Carnaghi, the son of a retired
police officer who is now the Deputy Chief of Airport Security at Lambert
International Airport, an appointed position filled by the Mayor of St.
Louis. The Mayor sits as an ex officio member of the Police Board. At a
meeting on March 16, 1994, Chief Harmon recommended the promotion of Andre
Denham, Jimmie Mader, and Terrill Shoemaker. After discussion, the Police
Board, on the motion of Anne-Marie Clarke, promoted Anna Griggs, Thomas
Moran and Terrill Shoemaker. Moran is the son of a retired senior police
officer. Griggs was known as the girlfriend of

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Luther Boykins, an associate of State Senator J.B. "Jet" Banks, whose wife
is Clarke's godmother. Clarke met with Anna Griggs and discussed Griggs
with Senator Banks. Griggs admitted that she discussed her promotion with
Clarke, but denied that she asked Clarke for assistance in getting
promoted. On April 20, 1994, the Police Board, upon Chief Harmon's
recommendation, promoted Mark Scheetz. Scheetz is also the son of a
retired senior police officer. On June 15, 1994, the Police Board, again
on the Chief's recommendation, promoted Andre Denham. On September 13,
1994, on the motion of Mischeaux, the Police Board promoted four officers
to sergeant.

On September 19, 1994, the Police Board entered into a conciliation
agreement with the Equal Employment Opportunity Commission. The Police
Board agreed to promote to sergeant eight white men who were eligible for
promotion in the 1991/92 cycle, but who were passed over through a process
called "cluster-dipping," that is, the Police Board promoted African-
American officers from a lower cluster when there remained white officers
eligible for promotion in a higher cluster. While these eight promotions
were retroactive to the 1991/92 promotion cycle, the vacancies did not
occur until the 1993/94 cycle.

The Equal Protection Clause of the Fourteenth Amendment requires the
government to treat similarly-situated people alike. City of Cleburne v.
Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985). Appellants and the
six police officers promoted from "C-Cluster" between February 15 and June
15, 1994, were similarly situated because their test scores were
statistically similar and all of the officers in the cluster were treated
alike for purposes of promotion eligibility. To assert an equal protection
claim resulting from the discriminatory application of "Rule L," the
appellants must show that (1) they were singled out and compelled to comply
with "Rule L" while others similarly situated were not so compelled, and
(2) the government action in singling appellants out

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for discriminatory enforcement was based upon an impermissible purpose or
motive, such as race, religion or the exercise of a recognized fundamental
right. See Bender v. City of St. Ann, 816 F.Supp. 1372, 1377 (E.D.Mo.
1993), aff'd, 36 F.3d 57 (8th Cir. 1994).

Appellants alleged below that race was a factor in the six challenged
"C-Cluster" promotions, but they now argue on appeal only that the
promotions were unconstitutional because they resulted from familial and
political influence. Even if, for the sake of argument, familial and
political influence may be considered impermissible motives, we agree with
the district court that appellants produced no evidence they were required
to abide by "Rule L" while the other six officers who were promoted from
"C-Cluster" were not. The Police Board's open door policy applied to
appellants, just as it did to the six police officers who were promoted,
and "Rule L" did not prohibit the Police Board members from seeking or
receiving additional information about candidates for promotion.
Appellants produced no evidence that Chief Harmon enforced "Rule L" against
any police officer.

We held in Backlund v. Hessen, 104 F.3d 1031, 1034 (8th Cir. 1997),
that "nepotism in government hiring requires some measure of justification
before it can pass constitutional muster." In so holding, we rejected the
district court's expansive reading of Kotch v. Board of River Port Pilot
Comm'rs, 330 U.S. 552 (1947), for the proposition that showing favoritism
to relatives in hiring could never violate the Equal Protection Clause.
We stated that the justification for nepotism in government hiring "must
connect the challenged hiring criterion to the capacity of the applicant
to perform the duties of the job applied for." Id. Because such a showing
was absent from the record in Backlund, we remanded the case for factual
development "about the culture of firefighting and of firefighters, or the
unique requirements, if any, of the job." Id.

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 We agree with appellants that the reasoning of Backlund is equally
applicable to the governmental promotion practices at issue here. But we
decline to remand this matter to the district court for further
consideration in light of Backlund, as appellants would have us do. In
Backlund, we treated the district court's resolution of the case as a
dismissal for failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6). Backlund, 104 F.3d at 1033. Because of the procedural
posture of the case, remand for development of the record was proper in
light of our rejection of the district court's broad rule that nepotism
could never give rise to an equal protection claim. We expressed no
opinion whether the plaintiff in that case could ultimately establish an
equal protection violation. We remanded only to give the plaintiff an
opportunity to show that there was no justification for nepotism in the
hiring decisions made at the City of Duluth Fire Department.

Here, the case is adequately presented on a complete summary judgment
record. Having conducted the required de novo review, we conclude the
district court appropriately analyzed appellants' equal protection claim
under the applicable rational relationship test and that the district
court's conclusion is consistent with our holding in Backlund.

Familial and political influence may have played some role in the
promotion process, but such influence was only one factor among a myriad
of factors considered by Police Board members. Four of the six officers
were promoted on Chief Harmon's recommendation. Police Board members
testified they felt it was important to meet with candidates for promotion
to learn more about them. That contacts with Police Board members on
behalf of candidates may have been prompted by family members, friends, or
the candidates themselves does not permit the automatic assumption that the
contacts alone resulted in the decision to promote. The information
gleaned from such meetings or contacts supplemented the material already
available to Police Board members as a result of

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the competitive promotion process. Because all thirty-seven officers
eligible for promotion in "C-Cluster" were considered equal, regardless of
differences in competitive scores, Police Board members reasonably wanted
some personalized information to help them distinguish which of the
candidates would make the best sergeants and should be promoted first from
the cluster. Such considerations are directly related to determination of
the officers' fitness and merit as required by § 84.040, and are fully
consistent with the requirement of Rule 8.200 that promotions "shall be
made according to fitness and merit, as determined by the Board." We think
the district court correctly ruled that the Police Board members' desire
for additional information about the candidates was rationally related to
the Police Board's legitimate interest in choosing the best candidates for
promotion from "C-Cluster." Therefore, appellants' equal protection claim
fails.

Accordingly, the judgment is affirmed.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.

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