                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                ________________

                                   No. 01-3053
                                ________________

Keith R. Meyer,                            *
                                           *
             Appellant,                    *
                                           *      Appeal from the United States
      v.                                   *      District Court for the
                                           *      Western District of Missouri.
City of Joplin,                            *
                                           *             [PUBLISHED]
             Appellee.                     *

                                ________________

                                Submitted: February 15, 2002
                                    Filed: February 26, 2002
                                ________________

Before HANSEN, Chief Judge, HEANEY and RICHARD S. ARNOLD, Circuit
      Judges.
                          ________________

PER CURIAM.

      Keith Meyer, a police sergeant, brought this action against the City of Joplin,
Missouri, for failing to promote him to the position of lieutenant. The position
required a candidate to have five years experience as an officer with the City, to have
completed 90 hours of college credit, and to currently hold the rank of sergeant. Any
candidate meeting these requirements was then eligible to participate in an open
competitive examination.1 After the examination, the top three candidates received
oral interviews with the police chief and two lieutenants. The process concluded with
a second interview with the police chief. Meyer obtained the highest score on the
examination and was one of the top three candidates, but he was not selected for the
promotion to lieutenant. The police chief, as the appropriate appointing authority,
informed Meyer that he was not promoted because the chief had more "chemistry"
with another candidate.

      Meyer filed suit against the City under 42 U.S.C. § 1983, alleging that the City
denied him due process by failing to promote him when he was the most qualified
candidate. Meyer asserted that he had a protected property interest in the promotion
because he had received the highest score on the open competitive examination and
because he had served in the military, which gave him a preference over the other two
candidates if all other ratings were equal. Meyer also alleged breach of an implied
contract and equitable estoppel. The City filed a Fed. R. Civ. P. 12(b)(6) motion to
dismiss, arguing that Meyer failed to state a claim upon which relief could be granted.
The district court2 granted the motion and found no property right in the promotion
because the City's Charter vested some discretion for promotion in the appointing
authority. The court based its decision primarily on the Joplin City Charter and its
attendant Personnel Rules. Meyer appeals only the district court's ruling on his due
process claim.



      1
       The open competitive examinations are used to determine the relative fitness
of applicants seeking employment with the City. The examinations may include
"aptitude, oral, written, physical dexterity, performance, character investigations,
physical examinations, drug testing, and other tests as deemed appropriate." (City of
Joplin Personnel Rule 3.5, J.A. at 39.) The exam given here included a written test
and an assessment portion, which included a variety of skill tests.
      2
       The Honorable Scott O. Wright, United States District Judge for the Western
District of Missouri.
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       We review the district court's grant of a motion to dismiss de novo. Grey v.
Wilburn, 270 F.3d 607, 608 (8th Cir. 2001). We accept as true all factual allegations
contained in the complaint and afford the plaintiff all reasonable inferences to be
drawn from those facts. Young v. City of St. Charles, 244 F.3d 623, 627 (8th Cir.
2001). "A case is properly dismissed only if it appears beyond doubt that the plaintiff
can prove no set of facts in support of his claim which would entitle him to relief."
Broadus v. O.K. Indus., Inc., 226 F.3d 937, 941 (8th Cir. 2000) (internal quotations
omitted). "To establish a claim under 42 U.S.C. § 1983, [a plaintiff] must show a
deprivation of a right, privilege, or immunity secured by the Constitution or the laws
of the United States." Dunham v. Wadley, 195 F.3d 1007, 1009 (8th Cir. 1999), cert.
denied, 531 U.S. 819 (2000).

       Meyer contends that his complaint alleges facts sufficient to state a
constitutional claim that the City deprived him of a property right without due process
of law. Count I of Meyer's complaint in relevant part states: "Plaintiff has a protected
property interest in his position with the Joplin Police Department, including, . . .
promotion to higher rank when proven that he is the most qualified candidate." (J.A.
at 2.) For Meyer to state an actionable claim for violation of due process, he must
establish that he has a property interest in promotion to lieutenant. See Bd. of
Regents v. Roth, 408 U.S. 564, 576 (1972). "[W]here no such interest exists, there
can be no due process violation." Singleton v. Cecil, 176 F.3d 419, 424 (8th Cir.) (en
banc) (internal quotations omitted), cert. denied, 528 U.S. 966 (1999). A property
interest in a promotion cannot arise from unilateral expectations, but instead, an
individual must have a legitimate claim of entitlement to it. Geddes v. N.W. Mo.
State Univ., 49 F.3d 426, 429 (8th Cir. 1995). "Property interests . . . 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." Roth, 408 U.S. at
577. To determine whether Meyer has a property interest in a promotion to



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lieutenant, the court looks to the City of Joplin Charter and Personnel Rules to see
how promotions within the police department are awarded.

      Section 5.06 of the Charter provides that any merit system rules adopted

      shall include, but not be limited to, provisions for : (1) Open competitive
      tests to ascertain the relative fitness of all applicants for appointments
      in the classified service, which test shall be practical, shall relate to
      matters which fairly measure the relative fitness of applicants to
      discharge the duties of the position which they seek, and shall take into
      account character, training and experience. . . . (6) Where ratings are
      equal, preference shall be given to applicants . . . who can submit
      documentary proof of having served in the Armed Forces of the United
      States, and who have been honorably discharged therefrom.

(J.A. at 27) The Charter also provides that "[n]o person in the classified service, or
seeking admission thereto, shall be . . . promoted . . . on any basis or for any reason
other than necessity, qualification, merit, and fitness for the service. . . . Any such
action shall be taken wholly without favoritism or discrimination and on no basis
other than provided herein." (City of Joplin Charter § 5.12, J.A. at 28-29.) Finally,
the City Personnel Rules promulgated pursuant to the Charter provide that
"[p]romotions in the service of the City shall be made solely on the basis of merit and
fitness." (City of Joplin Personnel Rules §§ 5.1, 3.1, J.A. at 45, 39.)

       While Meyer may have had certain unilateral expectations of being promoted
because of his success on the competitive examination and his rank as one of the top
three candidates, any such expectations were substantially diminished by the police
chief's ability under the City Charter and Personnel Rules to consider the candidate's
more subjective qualifications in addition to the competitive examination score.
Many courts have held that when an employer may consider subjective and objective
factors in making promotion decisions, an applicant's expectation of promotion based
on test rankings or prior employment fails to rise to the level of a property interest

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entitled to constitutional protection. See, e.g., McMenemy v. City of Rochester, 241
F.3d 279, 286 (2d Cir. 2001) (holding no property interest in promotion when fire
chief promised to promote firefighter but statute granted City discretion in selecting
candidate for promotion); Nunez v. City of Los Angeles, 147 F.3d 867, 872-73 (9th
Cir. 1998) (concluding expectancy of promotion not tantamount to entitlement given
contingencies inherent in promotion process); Stuart v. Roache, 951 F.2d 446, 455
(1st Cir. 1991) ("[W]here an appointing authority may consider factors in addition to
the applicant's ranking on an eligibility list, a police officer's expectation of
promotion based on that list will not rise to the level of a 'property interest' entitled
to constitutional protection."), cert. denied, 504 U.S. 913 (1992); Bigby v. City of
Chicago, 766 F.2d 1053, 1056 (7th Cir. 1985), cert. denied, 474 U.S. 1056 (1986)
("[T]hese sergeants did not have a property interest in the rank, which they had not
yet attained, of lieutenant."); Burns v. Sullivan, 619 F.2d 99, 104 (1st Cir.)
(concluding police officer did not possess property right in promotion based solely
upon written examination score), cert. denied, 449 U.S. 893 (1980).

       After reviewing the applicable provisions, we agree with the City that the
Charter and Rules merely set forth the minimum requirements and assurances that a
candidate will be fairly evaluated. We can find no provision that prevents the
promoting authorities from using discretion when choosing between the three highest
rated applicants; therefore, the police chief was free to appoint any of the three
qualified applicants, and Meyer was not entitled to an automatic promotion. We
conclude that Meyer had no constitutionally protected property interest in a
promotion to lieutenant. Accordingly, the judgment of the district court is affirmed.




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A true copy.

      Attest:

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




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