No Due Process Right To Promotion From Expired List

Written on 08/06/2022
Will Aitchison

John Cummings is a lieutenant in the Bridgeport Police Department in Connecticut. On October 21, 2015, the City held an examination for promotion to lieutenant. Cummings ended up ranked tenth on the promotional list.

On January 12, 2018, after being alerted to the possible expiration of the list by the president of the police union, Chief A.J. Perez requested that the per­sonnel director, David Dunn, “provide the next highest scoring lieutenants eli­gible to be certified for the promotion to the rank of captain.” At the time of this request, there were two vacant captain positions. Upon receiving the request for the next-highest-scoring lieutenants, Dunn initially replied that he could not “certify two captains because the positions are not budgeted.” He later supplemented his response by providing the next two names on the list, includ­ing Cummings, but reiterated that the names could not be certified because there was no funding for the positions.

When Cummings challenged Dunn’s refusal to certify his name, the Civil Service Commission voted unani­mously to certify Cummings’ name for promotion. Despite being certified for the promotion to the rank of captain, Cummings was not promoted, and was not given a reason why he was not pro­moted nor a hearing regarding why he was not promoted. The Department had not promoted anyone to the position of captain since Cummings was certified for that promotion.

Cummings filed a lawsuit, claiming his due process rights were violated by the failure of the City to promote him. A federal trial court dismissed Cum­mings’ claims.

The Court’s analysis started with the following, “Where a plaintiff alleges he was deprived of a property interest without due process of law, the Court must determine: (1) whether the plaintiff possessed a liberty or property interest and; if so (2) what process he was due before he could be deprived of that interest. Property interests, of course, are not created by the Constitution. Rather they are created, and their di­mensions are defined, by existing 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 entitlement to those benefits.

“In order to have a property interest in an employment position, one must have more than an abstract need or desire for it. Instead, one must have a legitimate claim of entitlement to the position.

“Cummings claims that he has a constitutionally protected right in being promoted from lieutenant to captain because, once his name was certified for promotion from a valid employment list, the police chief has no discretion not to promote him. The City concedes the police chief’s lack of discretion but argues that the employment list on which Cummings’ name appeared had already expired when the police chief initially requested names for certifica­tion. According to the City, this renders the list invalid; as a result, Cummings cannot have any property interest in the promotion.

“Under the charter, a list can be in force for only two years. Accordingly, the central question the Court must decide is the date on which the promotion list at issue came in force and based on that date when it expired. The ques­tion of when the promotion list came into force under the charter presents a matter of statutory interpretation under Connecticut state law.

“The Court finds that the only reasonable reading of the charter is that a list is ‘in force’ at the conclusion of the appeal period – one month from the date of the posting of the list – and without any further action required by any person or entity. One month from the date of the posting of the list, it is in effective operation and active, func­tional, and operative, in the sense that an appointing authority could make a request for a name from the list and receive, in due course, a certification of appointment. Prior to the one-month appeal period expiring, that would not be possible.

“Applying the plain and unam­biguous language of the charter to this case, the Court finds that the relevant employment list was in force for more than two years before Cummings’ name was certified. Because Cummings was not certified from a valid list, the request for his name (and ultimate certification of his name) did not grant Cummings a cognizable property interest in the promotion to Captain.

“Cummings argues in the alter­native that even if the list had already expired, the City’s historical pattern of interpreting the list to expire two years from the date of the first promotion off the list gave him a property interest in the promotion. This argument fares no better. This Court has failed to discover a single case where a property interest was found based on a policy or practice that was in direct violation of an existing law. In fact, perhaps unsurprisingly, just the opposite is true.”

Cummings v. City of Bridgeport, 2022 WL 1720335 (D. Conn. 2022).

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