Boston Chapter, NAACP, Inc. v. Beecher, Civ. A. No. 72-3060-F

• Court: United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
• Citation: 371 F. Supp. 507
• Docket Number: 73-269-F.,Civ. A. No. 72-3060-F
• Parties: BOSTON CHAPTER, NAACP, INC., et al. v. Nancy B. BEECHER et al. UNITED STATES of America v. CITY OF BOSTON et al.
• Decision Date: 11 February 1974

371 F. Supp. 507

BOSTON CHAPTER, NAACP, INC., et al.
v.
Nancy B. BEECHER et al.
UNITED STATES of America
v.
CITY OF BOSTON et al.

Civ. A. Nos. 72-3060-F, 73-269-F.

United States District Court, D. Massachusetts.

February 8, 1974.

As Amended February 11, 1974.

371 F. Supp. 508

COPYRIGHT MATERIAL OMITTED

371 F. Supp. 509

Patrick J. King, Thomas A. Mela, Boston, Mass., Benjamin Jones, Roxbury, Mass., for plaintiff in Civ. A. No. 72-3060-F

James M. Fallon, Dept. of Justice, Civil Rights Div., Employment Sec., Washington, D. C., Raymond Picard, Asst. U. S. Atty., Boston, Mass., for plaintiff in Civ. A. No. 73-269-F.

Edward D. Kalman, Walter Mayo III, John F. McGarry, Asst. Atty. Gen., Thomas F. McKenna, Asst. Corp. Counsel, Boston, Mass., for defendants.

FREEDMAN, District Judge.

These cases allege discriminatory practices on the part of the defendants in their qualification requirements and overall hiring policies for the position of firefighter in the City of Boston, in particular, and in other cities and towns of the Commonwealth of Massachusetts subject to state Civil Service law. Because of the identity of the issues involved and relief sought, the two cases were consolidated by the Court with the assent of the parties. United States v. City of Boston et al. is brought by the Attorney General to enforce the provisions of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., as amended by the Equal Employment Opportunity Act of 1972, (Pub.L. 92-261, March 24, 1972), and pursuant to 42 U.S.C. §§ 1981, 1983 for alleged deprivations of constitutionally protected rights. The plaintiff United States alleges discriminatory practices against blacks and Spanish-surnamed persons in recruitment policies, in the utilization of non-job predictive tests and qualifications which have a detrimental impact on

371 F. Supp. 510

blacks and Spanish-surnamed persons, and in the refusal to remedy those practices and correct the present effects of past racially discriminatory policies and practices. Plaintiff prays that the defendants be enjoined from continuing these alleged policies and ordered to conduct a meaningful minority recruitment program and to hire sufficient blacks and Spanish-surnamed persons to overcome the effects of alleged past discrimination. The Attorney General also seeks monetary compensation for the loss suffered by those minority persons who were denied employment opportunity because of the alleged discriminatory practices

Boston Chapter, NAACP, Inc., et al. v. Beecher et al. is brought as a class action. The cause of action is said to arise pursuant to 42 U.S.C. §§ 1981, 1983 and 28 U.S.C. §§ 2201, 2202. Plaintiffs allege discrimination in defendants' policies of recruiting and in their use of allegedly discriminatory selection procedures including the written exam, the swim test, and use of police records. The relief requested is similar to that prayed for in the companion case, including the imposition of a one to one hiring ratio and attorneys' fees.

Certification of a Class

Pursuant to F.R.Civ.P. 23(c)(1), the Court has ordered that Civil Action No. 72-3060-F be maintained as a class action. The following classes have been certified:

(1) All black or Spanish-surnamed persons who have applied for the position of firefighter in any fire department in the Commonwealth of Massachusetts subject to Massachusetts Civil Service law, but have not become eligible for appointment under existing requirements.

(2) All black or Spanish-surnamed persons who have never applied for the position of firefighter because they have allegedly been deprived of information concerning firefighter employment opportunities as a result of the allegedly discriminatory recruitment practices of the defendants.

Class (2) is represented by plaintiff Howard. Class (1) is represented by all other named plaintiffs.

Procedural Posture

Evidence was heard on plaintiffs' request for preliminary relief including evidence on defendants' overall recruiting and testing practices on July 30, 1973 and September 11-17, 1973. It was agreed by the parties that the hearing for preliminary relief would be treated as a trial on the merits, pursuant to Rule 65(a)(2), as to the written examination only. The issue of recruitment remained at the preliminary injunction stage. The issues of the swim test requirement and use of police records were not raised at this posture.

Partly as the result of a self-imposed freeze and partly on instructions from the Court, the Massachusetts Division of Civil Service (MDCS) has not certified for appointment individuals from the currently existing Civil Service eligible list for the fire service in Boston, Springfield, Worcester, Cambridge, or New Bedford, since the commencement of these actions. By order of the Court, however, MDCS was allowed to certify twenty (20) individuals for the fire service in Boston after the Court determined that an emergency situation existed in that city.

Present Hiring Procedure

The following facts have been stipulated to by the parties.

Nancy B. Beecher, Joseph M. Duffy, Richard J. Healey, Wayne Budd, and Helen C. Mitchell are the members of the Massachusetts Civil Service Commission and they are charged with the setting of policy for the Division of Civil Service. From January 22, 1968 to April 5, 1973, Mabel A. Campbell was Director of Civil Service and responsible for the administration and operation of

371 F. Supp. 511

the Division of Civil Service, including administering written examinations, medical examinations, strength requirements, and determining the good moral character of all persons seeking employment in the fire services in all cities (39) and in 68 towns in Massachusetts, including Boston. In addition, Ms. Campbell established eligibility lists and certified eligible individuals to those fire departments

The Director of Civil Service, upon request of a city or town, establishes education requirements pursuant to the provisions of M.G.L. c. 31 § 6A. Approximately 15 fire departments, not including the Boston Fire Department, require applicants to have a high school diploma or an equivalency certificate issued by the Massachusetts Department of Education. All other fire departments, including Boston, have no education requirements. The Director of Civil Service has been required by state law (M. G.L. c. 31 § 2A(m)) to establish a recruitment program to recruit persons to fill vacancies for officers and positions in the classified civil service, including firefighters, since March 1968. The responsibility of the Director of Civil Service to establish or conduct a recruitment program is subject to and dependent upon receiving sufficient funds for recruitment purposes through appropriations of the Massachusetts legislature. William McRell has been acting Director of the Division of Civil Service from April 5, 1973 to date.

The present Civil Service eligibility requirements for applicants for the position of firefighter in all cities (39) and 68 towns of the Commonwealth are as follows:

a) age 19 to 35 years of age;

b) no height requirements;

c) no weight requirements;

d) good moral character;

e) high school diploma or equivalency certificate required when requested by a city or town; and

f) average physical requirements.¹

The written examination for firefighter for all cities and towns in Massachusetts, including Boston, contain two parts. The first section is composed of 25 questions of a general intelligence nature. Each answer in Section I is worth 1 point. The second section contains 75 questions which are taken from the "Red Book." Each answer in Section II is worth 1 point. This type of examination has been given for at least the last twenty years. Of the 25 questions in the general intelligence section of the written examination there are approximately six questions from each of the four areas of arithmetic, spelling, vocabulary, and general knowledge, and an occasional question on current events or civics. The "Red Book" is a Fire Manual for the Instruction of Applicants for Entrance Examinations in the Fire Service in cities and towns of the Commonwealth of Massachusetts, prepared by the Massachusetts Division of Civil Service. This book has been in circulation for at least 20 years. The latest publication of the manual was March 3, 1972.

Applicants who achieve a passing score of 70 of the written examination, referred to above, are then evaluated for their prior training and experience and rated on a scale of 70 to 100. The final score for each candidate is a composite of 70% of the written examination score and 30% of the training and experience score. But one must achieve a passing score of 70 on the written examination to have his training and experience evaluated. Those applicants who have a total composite score of both the written

371 F. Supp. 512

examination and the training and experience over 70, must then pass a medical examination, meet certain strength requirements and the good moral character requirement. There are no points awarded nor is the total composite score affected in any way by these requirements; however, if a candidate does not meet any of these three requirements, he is not eligible for certification. Applicants who pass the written examination and fail any other requirement may pass those requirements anytime during the life of the eligibility list and have their name placed on said list. The final composite score is expressed to the second decimal place, i.e., "84.26." Disabled veterans are then placed on the list (100 down to 70), followed by veterans (100 down to 70), who are then followed by non-veterans (100 down to 70). Within six months of the date of the written examination, the Division of Civil Service establishes an eligibility list, and that list exists for a maximum of 2 years, at which time it expires by operation of state law, or the list expires by virtue of its exhaustion within...