Mark Brooks-Albrechtsen v. City of Indianapolis, et al
Filed Nonprecedential Disposition PER CURIAM. We have considered the rest of Brooks Albrechtsen s arguments most of which concern procedural matters and none merits discussion. Accordingly, in appeal no. 16 2485 we MODIFY the district court s judgment to clarify that any claim Brooks Albrechtsen may have under the NLRA is dismissed without prejudice, and as modified the judgment is AFFIRMED. Appeal no. 16 2660 is DISMISSED as duplicative. Daniel A. Manion, Circuit Judge; Michael S. Kanne, Circuit Judge and Ann Claire Williams, Circuit Judge. [6826648-1]  [16-2485, 16-2660]
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 17, 2017*
Decided March 17, 2017
DANIEL A. MANION, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
Nos. 16‐2485 & 16‐2660
MARK A. BROOKS‐ALBRECHTSEN,
CITY OF INDIANAPOLIS, INDIANA,
Appeals from the United States
District Court for the Southern District of
Indiana, Indianapolis Division.
Tanya Walton Pratt,
O R D E R
Mark Brooks‐Albrechtsen applied for a job as a police officer with the
Indianapolis Metropolitan Police Department. After being rejected he sued the chief of
police and other defendants claiming violations of the Constitution and federal statutes
in the selection process. On the defendants’ motion, the district court dismissed the
complaint with the explanation that it does not state a claim for relief. See FED. R.
* We have agreed to decide these appeals without oral argument because the briefs and record adequately
present the facts and legal arguments, and oral argument would not significantly aid the court. See FED. R.
APP. P. 34(a)(2)(C).
Nos. 16‐2485 & 16‐2660
CIV. P. 12(b)(6). That decision prompted these appeals, which we have consolidated for
For purposes here we accept as true the facts alleged in the complaint. See Carlson
v. CSX Transp., Inc., 758 F.3d 819, 823 (7th Cir. 2014). Brooks‐Albrechtsen recently earned
a law degree and previously worked as a police officer in Ohio. In September 2014 he
applied to work as a police officer in Indianapolis. Four months later
Brooks‐Albrechtsen was notified by e‐mail that he had been “selected to proceed to the
next phase of the applicant screening process.” The e‐mail explained that a “conditional
offer of employment” depended on meeting several requirements, including approval
by the Civilian Police Merit Board.
But the plaintiff’s application ran into trouble when a detective called him after
vetting his name online. The detective asked about a lawsuit he had brought against
another former employer, Brooks v. Ohio State Chiropractic Bd., No. 2:12‐cv‐225, 2012 WL
1429386 (S.D. Ohio April 25, 2012), and a 2009 misdemeanor conviction for
impersonating a private police officer, Ohio v. Brooks, No. 25033, 2012 WL 2947830
(Ohio Ct. App. July 20, 2012). The conviction stemmed from an arrest for driving
100 mph in a 65 mph zone and then falsely telling the patrolman that he worked as a
security officer for a local hospital. See id. at *1–2. Earlier in 2014 the plaintiff had
persuaded the Ohio trial court to seal its records of the misdemeanor conviction, and he
accused the detective of violating an antidiscrimination provision in Indiana’s
expungement statute, IND. CODE § 35‐38‐9‐10(b)(3), by investigating him online.
The Merit Board declined to hire Brooks‐Albrechtsen. He then sued in federal
court naming multiple defendants, including the detective who conducted the online
vetting, the chief of police, the City of Indianapolis, and Marion County.1 The plaintiff
alleges that he was turned down because of the sealed conviction and his lawsuit against
the former employer. The employment decision denied him due process and equal
protection, he claims, and also violated Section 8 of the National Labor Relations Act,
1 Indianapolis is located within Marion County, and the parties represent that the city and county
comprise a single legal entity because they have a unified government. To the contrary, the “City of
Indianapolis and Marion County are separate governmental entities.” Metro. Emergency Commcʹn Agency v.
Cleek, 835 N.E.2d 565, 567 n.3 (Ind. Ct. App. 2005); see Grieveson v. Anderson, 538 F.3d 763, 770–71 (7th Cir.
2008). Consistent with their unified government, however, the city and county jointly operate the police
force that rejected Brooks‐Albrechtsen’s application for employment. See History of the Indianapolis
Metropolitan Police Department, INDY.GOV, http://www.indy.gov/eGov/
City/DPS/IMPD/About/History/Pages/home.aspx (visited Mar. 17, 2017).
Nos. 16‐2485 & 16‐2660
see 29 U.S.C. § 158(a). In granting the motion to dismiss (after twice allowing
Brooks‐Albrechtsen to amend his complaint), the district court first reasoned that
Brooks‐Albrechtsen does not state a due process claim because he lacked a property
interest in prospective employment with the police department. See Moore v. Muncie
Police & Fire Merit Comm’n, 312 F.3d 322, 326–27 (7th Cir. 2002) (recognizing that
applicant does not have property interest in prospective public employment without a
“‘mutually explicit understanding’ between the parties” (quoting Crim v. Bd. of Educ. of
Cairo Sch. Dist. No. 1, 147 F.3d 535, 545 (7th Cir. 1998))). Likewise, the district court
concluded, Brooks‐Albrechtsen’s claim that he was discriminated against based on his
litigation history amounts to a “class of one” equal‐protection theory, which the
Supreme Court has rejected as having “no place in the public employment context.”
Engquist v. Oregon Dep’t of Agric., 553 U.S. 591, 594 (2008); see Abcarian v. McDonald,
617 F.3d 931, 938 (7th Cir. 2010) (“[C]lass‐of‐one claims cannot be based on the highly
discretionary and individualized sorts of decisions that public employers must make
about their employees.”). And as for the plaintiff’s NLRA claim, the court concluded that
none of the defendants are “employers” as defined in that Act. See 29 U.S.C. § 152(2)
(defining “employer” to exclude “any State or political subdivision thereof”).
After this decision Brooks‐Albrechtsen filed sequential notices of appeal. The first
of these, which we docketed as no. 16‐2485, concerns the merits. In that appeal we
mostly agree with the district court’s reasons for dismissing the complaint and add only
a few observations. First, we reject the notion that Indiana law forbade the Merit Board
from considering the sealed conviction, a central premise of the plaintiff’s lawsuit. He
invokes a statute making it unlawful to deny employment on account of a conviction
that has been sealed under Indiana law, but that provision is irrelevant because the
plaintiff’s Ohio conviction records were sealed by an Ohio court. See IND. CODE
§ 35‐38‐9‐10(b) (“It is unlawful discrimination for any person to . . . refuse to employ . . .
any person because of a conviction or arrest record expunged or sealed under this
chapter.” (emphasis added)). What is more, the sealing of Brooks‐Albrechtsen’s
conviction is not absolute: The governing Ohio statute expressly permits sealed
convictions to be disclosed to “any law enforcement agency or any authorized employee
of a law enforcement agency . . . as part of a background investigation of a person who
applies for employment with the agency as a law enforcement officer.” OHIO REV. CODE
ANN. § 2953.32(D)(6).
That brings us to our only quibble with the district court’s decision. The court
dismissed Brooks‐Albrechtsen’s NLRA claim on the merits, reasoning that the
defendants are not “employers” as defined by the Act. Yet the federal district courts do
Nos. 16‐2485 & 16‐2660
not have subject‐matter jurisdiction over claims that an employer engaged in an unfair
labor practice that violates Section 8 of the NLRA; those claims must be taken to the
National Labor Relations Board. See Smart v. Local 702 Intʹl Bhd. of Elec. Workers, 562 F.3d
798, 806 (7th Cir. 2009); NLRB v. Ill. Dep’t of Emp’t Sec., 988 F.2d 735, 738 (7th Cir. 1993).
Thus, the district court should have dismissed the NLRA claim without prejudice.
Finally, Brooks‐Albrechtsen argues for the first time on appeal that the Merit
Board was obliged to let him appeal its decision administratively, since, he maintains,
some police departments in other jurisdictions allow applicants to appeal their
disqualification from prospective employment. But whether other police departments
afford applicants more process than the Constitution requires is irrelevant. Absent a
property interest, no process is required. See Moore, 312 F.3d at 326; Crim, 147 F.3d at 545.
Moreover, we have no basis to grant the plaintiff’s request that we take “judicial notice”
of his summary of purported hiring practices for 30 police departments. See FED. R. EVID.
201(b); Rowe v. Gibson, 798 F.3d 622, 629 (7th Cir. 2015) (recognizing that Rule 201
mandates “indisputable” accuracy of facts subject to judicial notice).
That ends our discussion of the merits. Brooks‐Albrechtsen’s second appeal, case
no. 16‐2660, was filed after he asked for, and received, permission from the district court to
proceed in forma pauperis in his first appeal. In granting IFP the district court told
Brooks‐Albrechtsen that he could proceed without paying any part of the appellate fees
but still would remain liable for those fees. That condition, which the plaintiff views as
unconstitutional, is the subject of his second appeal. But he did not need to file a second
notice of appeal to challenge that order. Cf. FED R. CIV. P. 24(a)(5) (providing that party
denied leave to proceed IFP on appeal by district court may renew motion in court of
appeals); see also Baugh v. Taylor, 117 F.3d 197, 201 (5th Cir. 1997) (construing Rule 24).
Thus, the second notice of appeal is duplicative. And, in any event, there is nothing
unconstitutional about requiring Brooks‐Albrechtsen to later pay the appellate fees
when he has the means to do so. See Lewis v. Sullivan, 279 F.3d 526, 529 (7th Cir. 2002)
(explaining that “everyone allowed to proceed in forma pauperis owes the fees and must
pay when able”).
We have considered the rest of Brooks‐Albrechtsen’s arguments—most of which
concern procedural matters—and none merits discussion. Accordingly, in appeal no.
16‐2485 we MODIFY the district court’s judgment to clarify that any claim
Brooks‐Albrechtsen may have under the NLRA is dismissed without prejudice, and as
modified the judgment is AFFIRMED. Appeal no. 16‐2660 is DISMISSED as
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