147 F.3d 13 (1st Cir. 1998), 97-1880, Boston Police Superior Officers Federation v. City of Boston

• Citation: 147 F.3d 13
• Party Name: BOSTON POLICE SUPERIOR OFFICERS FEDERATION, David Aldrich, Patrick Crossen and William Slavin, Plaintiffs, Appellants, v. CITY OF BOSTON, Boston Police Department, Paul Evans and Massachusetts Department of Personnel Administration, Defendants, Appellees, Massachusetts Association of Minority Law Enforcement Officers, Intervenor, Appellee.
• Case Date: June 22, 1998
• Court: United States Courts of Appeals, U.S. Court of Appeals — First Circuit

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147 F.3d 13 (1st Cir. 1998)

BOSTON POLICE SUPERIOR OFFICERS FEDERATION, David Aldrich,

Patrick Crossen and William Slavin, Plaintiffs, Appellants,

v.

CITY OF BOSTON, Boston Police Department, Paul Evans and

Massachusetts Department of Personnel

Administration, Defendants, Appellees,

Massachusetts Association of Minority Law Enforcement

Officers, Intervenor, Appellee.

No. 97-1880.

United States Court of Appeals, First Circuit

June 22, 1998

Heard Jan. 8, 1998.

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James F. Lamond with whom McDonald & Associates was on brief for appellants.

Jonathan M. Albano with whom Bingham Dana LLP, Ozell Hudson, Jr., and Lawyers Committee for Civil Rights Under Law of the Boston Bar Association were on brief for intervenor.

Susan M. Prosnitz, Chief of Litigation, with whom Boston Police Department Legal Advisor's office was on brief for City of Boston, Boston Police Department and Paul Evans.

Edward J. DeAngelo, Assistant Attorney General, with whom Scott Harshbarger, Attorney General, was on brief for appellee. June 22, 1998

Before SELYA, Circuit Judge, CAMPBELL, Senior Circuit Judge, and BOUDIN, Circuit Judge.

CAMPBELL, Senior Circuit Judge.

This is an appeal from the district court's granting of summary judgment in favor of Defendants City of Boston, the Boston Police Department ("BPD"), and other state actors. The BPD promoted Rafael Ruiz, an African-American, to lieutenant prior to promoting any of the individual Plaintiffs, each of whom scored one point better than Ruiz on the lieutenant's examination. The BPD believed that promoting Ruiz was necessary to avoid violating an amended 1980 federal court consent decree, as then interpreted by a district court. The three white officers and the Boston Police Superior Officers Federation (the "Federation") sued in the district court, claiming that the consent decree did not mandate Ruiz's promotion and that the BPD's race-based action violated the officers' rights under the Equal Protection Clause.

Contrary to the judicial interpretation followed by the BPD, the district court in the instant case held that the consent decree did not apply to promotions to lieutenant and did not require Defendants to promote Ruiz. However, the court granted Defendants' motion for summary judgment, concluding that Ruiz's promotion served the compelling state interest of remedying the effects of past racial discrimination, and that the promotion was narrowly tailored to meet that goal. We affirm.

FACTS

1. Background

   The BPD selects officers for promotion based largely on their performance on a civil service examination. Officers who pass the exam are placed on an "eligible list" by the Massachusetts Department of Personnel Administration ("DPA"). When the Police Commissioner is ready to make promotions, the DPA supplies a "certification," or list, of the highest-scoring candidates from the eligible list, ranking the candidates in order of their exam scores. ¹

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   Traditionally, the BPD has selected candidates for promotion based almost exclusively on their certification scores, departing from rank order for only two reasons. First, the Commissioner has bypassed officers for cause, such as disciplinary problems. Second, the Commissioner has on several occasions "reached down" the list and selected a racial minority candidate in order to comply with the terms of a since-expired federal court consent decree.

   That consent decree dated back to 1978, when the Massachusetts Association of Afro-American Police, Inc. ("MAAAP"), the predecessor-in-interest of the Massachusetts Association of Minority Law Enforcement Officers ("MAMLEO"), sued the BPD in the federal district court for racial discrimination in its promotion practices. In 1978, black officers made up roughly 5.5 percent of the BPD as a whole, and 20 percent of Boston's population, yet among 222 BPD sergeants there was only a single black. The suit settled in 1980 and the district court entered a consent decree, the parties to which included the BPD, the DPA, MAMLEO's predecessor-in-interest, and certain public officials. ² The plaintiff class certified by the decree included "[a]ll present and future black [BPD] sworn officers"--a term of art meaning all officers, including sergeants and lieutenants, see infra.

   The decree set specific goals and timetables for promotions of black officers to sergeant, provided for the plan's dissemination within the BPD, and created an internal committee to monitor the plan's progress. These goals were to be met by the time of the decree's original expiration date of 1985. (As explained below, the decree was extended, finally coming to an end in 1995.) The decree also contained provisions (the scope of which is now disputed, see infra ) concerning validation of BPD promotional exams and practices in accordance with the EEOC's Uniform Guidelines on Employee Selection Procedures, 29 C.F.R. § 1607.1 et seq.

   Two of the Guidelines' requirements are relevant here. First, the decree expressly required that the BPD's tests for promotions to sergeant comply with Guidelines' standards for validation of promotional tests. See 29 C.F.R. § 1607.5; Original Consent Decree 4-5, pp 4, 5. Second, the decree makes explicit reference to the Guidelines' "four-fifths rule" for identifying disparate impact in promotions:

   A selection rate for any race ... which is less than four-fifths (4/5) (or eighty percent) of the rate for the group with the highest rate will generally be regarded by the Federal enforcement agencies as evidence of adverse impact.

   29 C.F.R. § 1607.4(D).

   The implementation of the decree proved quite difficult with respect to promotional practices. Although the decree prescribed annual promotions of officers from validated exams, by 1985 the BPD had not given any Guidelines-validated examinations, and had met none of the decree's numerical goals for the promotion of black officers. In 1985, MAAAP successfully sought to have the district court extend the decree until 1990 and modify the decree's numerical goals to reflect the increased number of qualified African-American candidates in the BPD.

   However, by 1990, the BPD had given only one "validated-fair" exam, and the number of blacks promoted still fell short of the decree's goals. As a result, the BPD and MAAAP jointly requested that the court extend the decree until the BPD could give one more "validated-fair" exam in June, 1991.

   Following the 1991 exam's administration, MAMLEO challenged its validity on the

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   ground that it did not comport with the Guidelines. The parties settled this challenge by jointly proposing an amendment to the consent decree, which specifically reaffirmed that selection procedures for the promotion to the position of sergeant be validated in accordance with the Guidelines. In addition, the amendment stated generally that the BPD would establish the next eligible lists for promotion to sergeant, lieutenant, and captain using selection procedures "of a significantly different type and/or scope."

   The district court approved the amendment, rejecting the Federation's challenge that the amendment exceeded the scope of the original decree by prescribing goals for lieutenant and captain. Significantly, the district court ruled that the decree imposed the Guidelines' requirements on "promotional examinations for all ranks" in the BPD (emphasis supplied). This court dismissed the Federation's appeal on the ground that its challenge would not be ripe for judicial review until a candidate was not "fairly considered" for promotion. Massachusetts Ass'n of Afro-Am. Police v. Boston Police Dep't, 973 F.2d 18, 20 (1st Cir.1992).

   Experts from the BPD, the DPA, and MAMLEO jointly developed a civil service exam for the position of lieutenant that was administered in September, 1992. The results of that test, which was "content validated" according to the Guidelines, 29 C.F.R. § 1607.5(B), generated the eligible list from which the BPD made the promotions at issue here.

2. The Promotion of Ruiz

   In early 1994, the BPD announced its intention to promote twenty sergeants to lieutenant. These promotions were to be based on the eligible list and certification generated from the 1992 exam.

   The eligible list from that exam included sixteen blacks and ninety whites. The nineteen highest-scoring candidates included two blacks and seventeen whites. The next highest score of 89 belonged to the three individual Plaintiff-Appellants here, David Aldrich, Patrick Crossen, and William Slavin, each of whom is white. (Four other sergeants scored 89, but did not bring suit.) Rafael Ruiz, an African-American, appeared next on the list with a score of 88.

   Had the BPD promoted from this certification strictly according to score order, the twenty new lieutenants would have comprised eighteen whites and two blacks. Based on the number of each group that were eligible for promotion, rank-order promotion would have yielded a selection rate of 20 percent for whites (eighteen selected from ninety) versus 12.5 percent for blacks (two of sixteen). Thus, the selection rate for black officers would have been 62.5 percent of that for whites (12.5/20), raising an inference of adverse impact under the Guidelines' four-fifths rule. See 29 C.F.R. § 1607.4(D). Based on the district court's 1991 interpretation, the BPD believed such a result would have violated the consent decree. By comparison, the promotion of an additional black sergeant in place of the eighteenth white sergeant would raise the promotion rate of blacks to 18.75 percent (three of sixteen) while lowering that of whites to 18.89 percent (seventeen of ninety), a near-equality that would easily satisfy the fourfifths rule.

   After reviewing these results, both the DPA and MAMLEO told the BPD that selecting lieutenants in strict rank order would disparately impact African-American candidates. The BPD performed...