United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted April 4, 2018*

Decided April 5, 2018

Before

DIANE P. WOOD, Chief Judge

WILLIAM J. BAUER, Circuit Judge

MICHAEL S. KANNE, Circuit Judge

No. 17-2138

CLEVELAND HARDY,

Plaintiff-Appellant,

v.

CITY OF CHICAGO and GARRY 

MCCARTHY,

Defendants-Appellees.

Appeal from the United States District 

Court for the Northern District of Illinois, 

Eastern Division.

No. 15 C 1174

Milton I. Shadur,

Judge.

O R D E R

Cleveland Hardy, an officer in the Chicago Police Department, contends that the 

City and the former police superintendent, Garry McCarthy, violated his right to due 

process by removing him from the position of sergeant without a hearing. He worked 

as a sergeant for about a week before the City discovered that he had failed the 

promotional exam and refused to finalize his promotion. The district judge entered 

 

* We have agreed to decide the case without oral argument because the briefs and 

record adequately present the facts and legal arguments, and oral argument would not 

significantly aid the court. FED. R. APP. P. 34(a)(2)(C).

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1
No. 17-2138 Page 2

summary judgment for the defendants, and we affirm. Having failed the promotional 

exam, Hardy had not acquired a property interest in the sergeant’s position. So the 

city’s removal of him from that position without a hearing did not offend due process.

Hardy knows McCarthy personally. After McCarthy became Superintendent in 

2011, Hardy was one of his two drivers for roughly three years. When the police 

department announced openings for the sergeant position, McCarthy and Hardy 

discussed the possibility of Hardy applying. Command staff below the rank of deputy 

superintendent could nominate a candidate for this promotion as long as the candidate 

had passed an exam administered in 2006. (This requirement arose from the city’s

adoption of a Hiring Plan in response to Shakman v. Democratic Organization of Cook 

County, No. 69 C 2145 (N.D. Ill. filed Oct. 17, 1969).) The exam’s announcement 

reiterated that to be eligible for promotion to sergeant, candidates must pass the exam. 

It also said that “[a]t any time during the examination process, the Department of 

Human Resources and the Chicago Police Department reserve the right to modify the

... qualifications deemed appropriate to evaluate applicants for this position.”

Hardy failed the exam. He says that he never told McCarthy that he failed, and 

McCarthy did not check to see whether Hardy passed the exam. But McCarthy asked 

his chief of staff to “see if you could get Cleve that nomination [for promotion] if it’s 

available.” The chief of staff turned to Commander Jonathan Johnson, who also did not 

check whether Hardy had passed the exam. Johnson nominated Hardy for promotion 

and submitted Hardy’s application packet to the city’s Merit Selection Board for review.

The Board did not recommend Hardy for promotion, but he briefly became a 

sergeant anyway after McCarthy interviewed nominees and selected Hardy for one of 

the openings. Hardy later attended and graduated from sergeant training at the Police 

Academy. Roughly a week after Hardy started work as a sergeant and purchased the 

sergeant’s uniform for $3,000, the city’s Human Resources Department noticed that he 

had not passed the sergeant’s exam. Once this department caught the error, it alerted

the police department’s human-resources office that Hardy had not passed the test. The 

police department told Hardy that he could not be a sergeant and cancelled his 

promotion. 

After the police department withdrew Hardy’s promotion, the First Deputy

Superintendent told him that the City had not always enforced the requirement that 

sergeant applicants pass the exam. According to Hardy, the First Deputy said “there are 
No. 17-2138 Page 3

a lot of people on this job that did not have all qualifications and the superintendent 

made the decision, because he can, to promote [sic] ... I know a guy right now that 

didn’t even take a test at all, by the name of Jerry Masterson.”

Hardy turned to federal court, suing the City and McCarthy under 42 U.S.C. 

§ 1983 for allegedly depriving him of his property interest in his promotion to sergeant 

without due process in violation of the Fourteenth Amendment. During discovery 

Hardy sought from the City all documents relating to Masterson’s promotion to 

sergeant, which occurred 11 years earlier. After a magistrate judge ordered the City to 

turn them over, the City responded that it had no records of Masterson’s exam

performance. This prompted Hardy to ask the magistrate judge to bar the City from 

disputing that it allowed sergeants to retain their positions even when the City later 

found that they never qualified. The magistrate judge denied the motion but made two 

rulings. The judge prohibited the City from contending that Masterson was qualified for 

his promotion to sergeant. And the judge ruled that if the district judge found that 

Masterson’s promotion was relevant to Hardy’s case, Hardy could ask the district judge 

for “any inference in his favor.” Hardy never asked for any inference.

The City and McCarthy moved for summary judgment, and the district judge

granted their motions. A reasonable factfinder could not conclude, the judge said, that 

Hardy had acquired a property interest in his promotion to sergeant. The judge 

explained that, because Hardy had not passed the exam, the promotion “was never 

lawfully his.” And the judge rejected as hearsay Hardy’s assertion that the First Deputy 

told him that the police department hired Masterson as a sergeant even though he did 

not pass the exam. Therefore, the judge ruled, Hardy did not establish a triable question

on whether the City has ignored the exam requirement. 

On appeal Hardy asserts that he established a triable question about whether he 

had a property interest in his promotion. A plaintiff’s appointment to a police force 

does not create a property interest in that position if the plaintiff concedes that he did 

not meet a requirement for hiring. See Bailey v. City of Lawrence, 972 F.2d 1447, 1449 

(7th Cir. 1992). This principle follows from the general rule that when a plaintiff 

concedes that he lacks the factual basis necessary for a property interest, due process is 

not implicated. See Codd v. Velger, 429 U.S. 624, 627–28 (1977). Hardy admits that he did 

not pass the 2006 sergeant’s exam. Under the Hiring Plan and announcement for that

exam, passing was a requirement for becoming a sergeant. The City therefore could 
No. 17-2138 Page 4

remove him from a position for which he admits he was never qualified without 

offending due process.

Hardy responds that he was qualified because McCarthy could and did 

“overrule” the exam requirement. McCarthy did so, Hardy contends, by asking Johnson 

to nominate Hardy for promotion, by choosing Hardy for promotion, and by thus

exercising his right “to modify” the qualifications for sergeant, as Hardy believes the 

exam’s announcement allowed. But for two reasons, this argument is unpersuasive. 

First McCarthy told his chief of staff only to see “if” he could get Hardy a promotion 

nomination “if” it was available. Hardy presented no evidence suggesting that 

McCarthy or anyone in his chain of command ever knew that Hardy did not pass, let 

alone that McCarthy ordered Hardy promoted even if he had failed. Second McCarthy 

could not “overrule” the requirement that Hardy pass the exam. To the contrary, as 

stated in the 2006 exam announcement that Hardy relies on, the police department 

could “modify” the qualifications for sergeant only “during the examination process.”

That process ended long before McCarthy became Superintendent in 2011. 

Hardy offers two alternative arguments that are also unavailing. First he argues 

that even if his promotion were invalid, a reasonable factfinder could conclude that he 

acquired a property interest in the job because he graduated from the Police Academy,

worked as a sergeant for over a week, and was chosen by McCarthy for promotion. But 

given the requirement that he pass the exam, his awareness that he had failed it, the 

lack of evidence that McCarthy could or did abolish the requirement, and the fact that 

the City did not put him on the payroll as a sergeant, his reliance on a personnel 

mistake was unreasonable and did not create a property interest. See Forgue v. City of 

Chicago, 873 F.3d 962, 970 (7th Cir. 2017); Wolf v. City of Fitchburg, 870 F.2d 1327, 1334 

(7th Cir. 1989) (ruling that property interests cannot arise from “representations of 

government officials who are not authorized to make such representations”).

Second Hardy argues that a reasonable factfinder could conclude that the city’s 

history of “loosely and subjectively” applying the exam requirement, which he 

contends is reflected in the case of Masterson, created a property interest in his position. 

For proof, he says that the First Deputy Superintendent said that Masterson became a 

sergeant even though he did not take the exam. But as the district judge correctly noted, 

Hardy’s statement is offered for the truth of the matter that he says the First Deputy 

asserted and is therefore inadmissible hearsay. See FED. R. EVID. 801(c), 802. To avoid the 

hearsay problem, Hardy could have proffered sworn testimony from the First Deputy, 
No. 17-2138 Page 5

but did not. He also could have asked the district judge to infer from the city’s failure to 

produce Masterson’s test records that Masterson was promoted despite never passing 

the exam. But he did not do this either. Although Hardy complains on appeal about the 

City not producing Masterson’s test records, it is too late now to argue for such an 

inference here. See Puffer v. Allstate Ins. Co., 675 F.3d 709, 718 (7th Cir. 2012) (“It is a wellestablished rule that arguments not raised to the district court are waived on appeal.”).

AFFIRMED