In the

United States Court of Appeals

For the Seventh Circuit

No. 09-2676

JOSEPH FINCH, DAVID E. HENSLEY,

and PETER W. MUNGOVAN,

Plaintiffs-Appellees,

v.

BART PETERSON, 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.

ARGUED DECEMBER 9, 2009—DECIDED SEPTEMBER 10, 2010

Before FLAUM, WILLIAMS, and SYKES, Circuit Judges.

SYKES, 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 plaintiffs—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

On January 1, 2007, the Indianapolis Police Department

1

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 Indianapolis Police Department.

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-
No. 09-2676 3

The complaint is silent as to who received the eleventh 2

promotion.

The seven individual defendants are: Bart Peterson, the former 3

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. 

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 promotions 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 AfricanAmerican 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 lieutenants brought this suit alleging that the City of Indianapolis 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 promotion to captain solely on the basis of their race. The de- 3

fendants moved for judgment on the pleadings pursuant

to Rule 12(c) of the Federal Rules of Civil Procedure based
4 No. 09-2676

In accordance with the provisions of 28 U.S.C. § 636(c) and

4

Rule 73 of the Federal Rules of Civil Procedure, the parties

consented to have a magistrate judge conduct all proceedings

in the case.

In 2005 the DOJ filed a motion to dissolve the consent decree

5

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 Department 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.

on the terms of a 1978 consent degree entered into by

the Police Department and the DOJ. The consent decree 4

settled litigation alleging that the Police Department

had engaged in a pattern of racially discriminatory employment practices that adversely affected African-Americans. The decree was designed to eliminate the discriminatory employment practices and to require the Police

Department to take certain affirmative remedial measures to improve the job prospects of African-Americans

in the Police Department.5
No. 09-2676 5

The City of Indianapolis and the Merit Board also sought 6

judgment on the pleadings based on the terms of the 1978

consent decree. The denial of their motion was not immediately appealable.

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 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, BuchananMoore 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 sufficiently 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 scrutiny.”); 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 complaint 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 governmental 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

The consent decree also applied to the Indianapolis Fire

7

Department.

This requirement was subject to the existence of a suf- 8

ficiently large pool of African-American applicants.

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. It is true 7

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. This 8

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 composition 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-
No. 09-2676 9

vidual officer are not to be based solely upon any individual’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 specifically mandating that “[p]romotions shall be based upon

relevant standards and criteria which will be applied without 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-Americans throughout all levels of the Police Department.

They insist that this reading is the only one that “harmonizes” 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 reasonably 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 conjunction 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 adjustment 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 decisionmaking in the promotions context. This argument is

unconvincing. We find no inconsistencies in the language 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 sergeant, 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 Department) 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 promotional 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 advantage 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.

AFFIRMED.

9-10-10