Cotter v. City of Boston
| Decision Date | 20 October 1999 |
| Docket Number | Civil Action No. 99-11101-WGY. |
| Citation | 73 F.Supp.2d 62 |
| Parties | Winifred N. COTTER, Vincent J. Difazio, John P. Doris, William J. Dwan, William G. Knecht, Michael Locke, Patrick L. Murphy, and Thomas L. Sexton, Plaintiffs, v. CITY OF BOSTON and James J. Hartnett, Jr., Defendant. |
| Court | U.S. District Court — District of Massachusetts |
Mary Jo Harris, Boston Police Dept., Office of the Legal Advisor, Boston, MA, for Boston Police Dept., Paul Evans, Edward P. Callahan.
Mertia A. Hopkins, Boston Police Dept., Office of Legal Advisor, Boston, MA, for City of Boston.
Edward J. DeAngelo, Atty. General's Office, Boston, MA, Candies Pruitt, Asst. Atty. Gen. Government Bureau, Boston, MA, for Commonwealth of Mass.
Grace M. Jones, Lawyers Committee for Civil Rights/Boston, Boston, MA, Rutowski Rheba, Bingham Dana LLP, Boston, MA, for Dennis A. White, Harold White, Massachusetts Association of Minority Law Enforcement Officers.
Edward J. DeAngelo, Atty. General's Office, Boston, MA, Ginny Sinkel, Office of the Atty. General, Government Bureau, Boston, MA, Mary Jo Harris, Boston Police Dept., Office of the Legal Advisor, Boston, MA, for James J. Hartnett, Jr.
In 1997, eleven City of Boston police officers earned a score of 84 on the civil service sergeant's exam, a certification test administered by the Commonwealth of Massachusetts Human Resources Division (the "Division"). Eight of these officers were "white" (the "White Officers") and three were "black" (the "Black Officers").1 When the Boston Police Department (the "Police Department") promoted only the Black Officers, the White Officers brought this action against the City of Boston (the "City") and James J. Hartnett, Jr. ("Hartnett"), in his official capacity as the Personnel Administrator of the Division. The White Officers allege civil rights violations under 42 U.S.C. § 1983, claiming that the City's decision was unlawfully motivated by race and Hartnett's office failed in its duty to prevent such discriminatory actions. Hartnett says, in effect, and moves to dismiss the White Officers' claims against him for failure to state a claim upon which relief may be granted because he neither made the promotion selections nor allegedly possessed legal authority under Massachusetts law to prevent selection among equally-scoring candidates.2
Taking all facts and inferences drawn therefrom in favor of the White Officers, this Court must grant a motion to dismiss "if it clearly appears, according to the facts alleged, that the plaintiff[s] cannot recover on any viable theory." Figueroa v. Rivera, 147 F.3d 77, 80 (1st Cir.1998). Despite this low threshold, the pleading requirement is "not entirely a toothless tiger." Doyle v. Hasbro, Inc., 103 F.3d 186, 190 (1st Cir.1996). In order to survive a motion to dismiss, the White Officers must set forth "factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery...." Cooperman v. Individual, Inc., 171 F.3d 43, 47 (1st Cir.1999). As such, the Court need not accept "bald assertions, unsupportable conclusions, periphrastic circumlocutions, and the like...." Rogan v. Menino, 175 F.3d 75, 77 (1st Cir.1999).
On October 19, 1996, the Division administered a certification exam for Boston police officers seeking a promotion to the rank of sergeant. See Am.Compl. ¶ 18. After scoring the exams, the Division provided the Police Department with a list of the 69 highest scorers arranged in alphabetical order by each score (ranging from 92 down to 82). See id., Ex. A. The group with a score of 84 included both the White Officers and the Black Officers. See id. at ¶ 24. The Police Department eventually promoted a total of 36 individuals including the Black Officers. See id. at ¶ 38. The White Officers, despite the fact that they had the same score as the Black Officers, did not receive promotions. See id. at ¶ 35.
Correspondence between Police Department officials and Hartnett's office reveal a concerted effort by the Police Department to promote the Black Officers because of their race. Most strikingly, the Police Department initially promoted the Black Officers to the exclusion of six "white" officers who had the higher score of 85.3 See id., at ¶ 37, Ex. B. In correspondence with the Division, the Police Department stated that this score bypass, referred to in the Amended Complaint as "reaching down," was effectuated "to ensure compliance with current EEOC guidelines, applicable federal and state discrimination laws," id., and to prevent the percentage of "black" sergeants from dropping below 15.18% of all sergeants,4 see id., Ex. C. In response, Hartnett's office informed the Police Department by letter that such reasons did not justify a bypass and were unacceptable.5 See id., Ex. D. To implement its desired promotion of the Black Officers in the face of Hartnett's apparent disapproval, the Police Department requested and obtained a Public Safety Civil Service Requisition for six sergeant vacancies in order to promote, in addition to the Black Officers, the "white" candidates who had been bypassed.6 See Am.Compl., Ex. G. Despite the extensive dialogue between the Police Department and Hartnett's office, however, no mention was ever made of the fact that the Police Department eventually promoted the Black Officers scoring 84 to the exclusion of the eight White Officers with the same exam score.
As the Personnel Administrator of the Human Resources Division, Hartnett is charged with providing eligible lists (based on test scores) of individuals for jobs and promotions in the civil service. See Mass.Gen.Laws ch. 31, § 25 (1999). The "ultimate selection" for promotion of civil servants from such lists is left to the "broad" discretion of the appointing authority, in this case the Police Department. Burns v. Sullivan, 473 F.Supp. 626, 629 (D.Mass.1979) (Caffrey, C.J.), aff'd, 619 F.2d 99 (1st Cir.1980). When, however, the Police Department awards a promotional appointment to an individual "other than the qualified person whose name appears highest" on the list, i.e., a "bypass," the Police Department must "immediately file with [Hartnett] a written statement of ... reasons for appointing the person whose name was not highest." Mass.Gen.Laws ch. 31, § 27 (1999). Hartnett has the power to accept or reject the reasons given by the Police Department for the bypass. See MacHenry v. Civil Serv. Comm'n, 40 Mass.App.Ct. 632, 635, 666 N.E.2d 1029 (1996); Boston Police Dep't v. Campbell, No. CIV.A. 96-3674-B, 1997 WL 426973, at *1 (Mass.Super.1997) (King, J.). Hartnett relied on this power of rejection when it prevented the Police Department's attempt to promote the Black Officers to the exclusion of "white" candidates with higher test scores.
Unlike statutory or regulatory regimes in other jurisdictions,7 Massachusetts civil service law does not explicitly spell out Hartnett's responsibilities when an appointing authority makes a promotional selection among candidates with equal scores on an eligibility list,8 Hartnett contends that, pursuant to Mass.Gen. Laws ch. 31, § 27, his office can "only exercise[ ] its authority to review an appointing authority's selection of candidates when the authority selects a person with a lower score than another candidate on the list ..." and "[i]n this case [the Police Department] selected among candidates who had ... all ranked equally on the eligibility list." Def.Mem. at 11. Despite Hartnett's contention, however, section 27 is not triggered by the selection of "a person with a lower score than another candidate." Id. (emphasis added). Rather, the statute authorizes Hartnett to review an appointing authority's rationale when it selects somebody "other than the qualified person whose name appears highest."9 Mass.Gen.Laws ch. 31, § 27 (emphasis added). This subtle difference illustrates that section 27 presupposes that there will only be one person for an appointing authority to select, i.e., the highest scoring candidate. Any selection among equally-scoring candidates is therefore a "bypass" because all of their names "appear highest." Accordingly, the appointment of less than an entire group of equally-scoring candidates triggers section 27: i.e., it would appear that the appointing authority must immediately file with Hartnett a written statement of reasons for not appointing the entire group (even if there are not enough openings for all of them). See id. Such justifications are subject to Hartnett's review. See MacHenry, 40 Mass.App.Ct. at 635, 666 N.E.2d 1029.10
Even though the Court is confident that section 27 imposes a specific duty upon Hartnett to intervene whenever there is a selection among equally-scoring candidates, Hartnett's more general obligations under the civil service law reveal an additional duty to act in the case at bar. First, under Massachusetts law, Hartnett is required to "evaluate the qualifications of applicants for civil service positions in accordance with basic merit principles and ... to administer, enforce, and comply with the civil service law and rules." MacHenry, 40 Mass.App.Ct. at 635, 666 N.E.2d 1029 (emphasis added); accord Mass.Gen.Laws ch. 31, § 5(a), (c) (1999). Among other things, the term "basic merit principles" means (i) "advancing ... employees on the basis of their relative ability, knowledge and skills ...;" (ii) "assuring fair treatment of all applicants and employees in all aspects of personnel administration without regard to ... race [or] color...
To continue reading
Request your trial
-
Staveley v. City of Lowell
...are concerned, his rights surely were capable of vindication through an appeal to the commission. See generally, e.g., Cotter v. Boston, 73 F.Supp.2d 62, 67 (D.Mass. 1999). If, on appeal, the commission concluded that Martin was wrong, it possessed the remedial power to provide Staveley wit......
-
Cotter v. MA Assoc. of Minority Law Enforcement Officers
...not responsible for the promotion decision. When the district court denied the motion to dismiss in October 1999, Cotter v. City of Boston, 73 F. Supp. 2d 62 (D. Mass. 1999), Hartnett moved to certify to the Massachusetts Supreme Judicial Court questions of law concerning his authority. In ......