Donahue v. City of Boston

• Citation: 304 F.3d 110
• Decision Date: 05 September 2002
• Docket Number: No. 02-1027.,02-1027.
• Parties: Bradley J. DONAHUE, Plaintiff, Appellant, v. CITY OF BOSTON, et al., Defendants, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 110

304 F.3d 110

Bradley J. DONAHUE, Plaintiff, Appellant, v. CITY OF BOSTON, et al., Defendants, Appellees.

No. 02-1027.

United States Court of Appeals, First Circuit.

Heard June 13, 2002.

Decided September 5, 2002.

Michael C. McLaughlin, for appellant.

Rory FitzPatrick, with whom Irene C. Freidel, Charles J. Dyer, Kirkpatrick & Lockhart LLP, and William V. Hoch were on brief, for the City of Boston appellees.

William E. Reynolds, Assistant Attorney General, Government Bureau, with whom Thomas F. Reilly, Attorney General, were on brief, for the state appellees.

Toni G. Wolfman, with whom Foley, Hoag & Eliot LLP, Nadine M. Cohen, and Maricia Woodham of the Lawyer's Committee for Civil Rights, were on brief, for appellees The Massachusetts Association of Minority Law Enforcement Officers and the Boston Chapter of the National Association for the Advancement of Colored People, Inc.

Before TORRUELLA and LIPEZ, Circuit Judges, and SCHWARZER,^* Senior District Judge.

TORRUELLA, Circuit Judge.

Appellant Bradley Donahue brought suit in the district court challenging, on equal protection grounds, an affirmative action program for the hiring of Boston police officers. The program is the product of a consent decree entered in 1973. See Castro v. Beecher, 365 F.Supp. 655 (D.Mass. 1973). After concluding that Donahue failed to establish standing to assert his claims, the district court entered judgment adverse to Donahue on all claims. For the reasons stated below, we affirm in part and reverse in part.

I. FACTS AND PROCEDURAL HISTORY

A. The selection process

To be eligible for appointment to the Boston Police Academy ("the Academy"), a candidate must take a statewide civil service examination.¹ The examination is administered by the Commonwealth of Massachusetts Human Resources Division ("HRD"). After HRD administers the exam, it compiles an "eligible list" setting forth those people who received a passing score on the examination (a score of at least seventy is considered passing). In accordance with the terms of the consent decree, HRD assembles the eligible list by alternating minority and non-minority candidates. All individuals on the eligible list are considered qualified for appointment to a civil service position.

The candidates on the eligible list are then divided into residents and non-residents of Boston. Residents, regardless of score, are ranked higher than non-residents. Within the group of residents, candidates with so-called "statutory preference" receive an additional boost on the eligible list. The categories of statutory preferences include: (1) the children of firefighters or police officers who were killed or sustained injuries that resulted in death; (2) disabled veterans; (3) veterans; and (4) widows or widowed mothers of veterans who were killed in action or died from a service-connected disability incurred in wartime service. The candidates with a statutory preference are all ranked higher than those without a statutory preference. Candidates without a statutory preference or the requisite language skills are ranked according to their scores on the civil service examination, subject to the alternation requirement of the consent decree.

When the time comes to hire a new class of student officers, the Boston Police Department ("BPD") requisitions a "certification list" from HRD to fill the positions. HRD then certifies sufficient names from the eligible list available for appointment. Starting from the top of the eligible list, and moving down in strict rank order, HRD creates the certification list by certifying roughly twice the number of persons requested by BPD. Subject to background checks on all candidates on the certification list, BPD must select candidates for appointment in order of their position on the list, starting with the highest-ranking person, unless it supplies a reason for bypassing someone. Special certification lists are also created for those candidates who qualify for a hiring preference based on their ability to speak Spanish, Vietnamese and French-Creole. Typically, BPD hires one person for every three persons listed on the general certification list.

In addition to this hiring procedure, BPD can hire new officers in three other ways. The first such mechanism is the appointment of police officers from a statutorily-created police cadets program.² Second, former members of BPD who retired because of a disability may seek reinstatement to their former positions. See Mass. Gen. Laws ch. 32, § 8. And finally, the Massachusetts Criminal Justice Training Council has promulgated regulations that allow an appointing authority to recycle former recruit officers into a subsequent Academy class. See 550 Code Mass. Regs. § 3.04(1)(e).

B. The April 1997 exam

Donahue, a white male, took the statewide civil service examination administered by HRD on April 26, 1997. He received a passing score of ninety-two and was thus placed on the eligible list. Donahue does not qualify for a statutory preference, nor does he possess the language skills that would place him on a special certification list. Donahue's name appears at page twenty-seven of the eligible list.

In response to BPD's requisition, HRD provided a certification list containing the names of the top 157 candidates who were eligible for appointment. In addition, HRD provided three special certification lists of persons who qualified for a hiring preference based on their ability to speak Spanish, Vietnamese, or French-Creole, respectively. On June 10, 1998, BPD appointed eighty-three people to the Academy, comprised of: (1) thirty-seven officers from the general certification list; (2) ten from the special language certification lists; (3) one disability retiree; (4) thirty-one cadets; and (5) four officers from a previous Academy class. All thirty-seven officers appointed from the general certification list qualified for a statutory preference. The last non-minority hired was a veteran whose name appears on page three of the eligible list.

Later, BPD decided that it was necessary to appoint another class of officers from the same eligible list that was created from the results of the April 1997 exam. In response to BPD's requisition, HRD issued a certification list containing 163 names. Additional special certification lists were created with the names of those candidates with the requisite language skills. On May 12, 1999, BPD appointed fifty-six people to the Academy, comprised of: (1) thirty-one officers from the general certification list; (2) four from the language certification lists; (3) one disability retiree; (4) seventeen cadets; and (5) three officers recycled from a previous class. Of the thirty-one officers appointed from the general certification list, eighteen had statutory preferences. The thirteen officers without statutory preference, all minority candidates, scored higher on the exam than Donahue.

The lowest-ranking non-minority applicant who was appointed to the May 1999 class was an individual whose name appeared on page four of the eligible list while Donahue's name appeared on page twenty-seven. Since the names on the eligible list alternate between minority and non-minority, there were more than 580 non-minority names between the lowest-ranking non-minority appointee and Donahue.

C. The May 1999 Exam

On May 8, 1999, HRD administered another statewide civil service entrance examination. Donahue passed this examination with a score of ninety-six. On March 5, 2001, consistent with the procedure we have already described, BPD appointed forty-nine new police officers, comprised of thirty-three candidates from the general certification list and sixteen from the cadet program. Twenty-six officers appointed from the general certification list qualified for a statutory preference. The seven without statutory preferences were all minority candidates certified to the list pursuant to the alternation requirement of the consent decree. Although six of these candidates had exam scores greater than Donahue's, one minority appointee had a lower exam score.

The lowest-ranking non-minority applicant appointed was an individual whose name appears on page two of the eligible list, at number ninety-one. Meanwhile, Donahue's name appears on page seven of the eligible list, at number 326. Thus, there were 117 non-minority candidates between the last non-minority appointee and Donahue.

D. Proceedings in the district court and the April 2001 exam

Donahue filed his complaint on May 10, 2000, asserting claims of discrimination under the Fourteenth Amendment to the United States Constitution and 42 U.S.C. §§ 1981 and 1983. The complaint names as defendants the City of Boston, the BPD, and the Commissioner of the BPD (collectively, "appellees"). Donahue also asserted claims under 42 U.S.C. §§ 1985 and 1986 against several state officials (collectively, "state appellees") based on their failure to comply with certain public record requests. Donahue's complaint prayed for injunctive, monetary, and declaratory relief.

After filing his complaint, Donahue took the civil service examination again on April 26, 2001, receiving a passing score of 100. BPD requisitioned a certification list in order to hire police officers from the class of individuals that took that exam. In response, HRD forwarded a certification list dated September 14, 2001. Donahue's name does not appear on that certification list. Appellees contend that, because Donahue had reached the age of thirty-two when he took the April 2001 exam, he was ineligible for appointment to the Academy under a recent state statute which provides that, in any municipality that adopts the statute, no person who has reached his thirty-second birthday on the date of the entrance examination shall be eligible to have his name certified for "original appointment" to a municipal police officer position.³ 2000 Mass. Acts ch. 242 ("Chapter 242") (codified at ...