Brackett v. Civil Service Com'n

• Decision Date: 14 July 2006
• Citation: 447 Mass. 233,850 N.E.2d 533
• Parties: William BRACKETT & others<SMALL><SUP>1</SUP></SMALL> v. CIVIL SERVICE COMMISSION & another<SMALL><SUP>2</SUP></SMALL> (and a companion case<SMALL><SUP>3</SUP></SMALL>).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

850 N.E.2d 533

447 Mass. 233

William BRACKETT & others¹ v. CIVIL SERVICE COMMISSION & another² (and a companion case³).

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 3, 2006.

Decided July 14, 2006.

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Frank J. McGee for William Brackett & others.

Robert L. Quinan, Jr., Assistant Attorney General, for Human Resources Division of the Commonwealth.

Robert P. Morris, Boston, for Massachusetts Bay Transportation Authority.

Daniel J. Gleason, Yalonda T. Howze, & Nadine Cohen, Boston, for Massachusetts Association of Minority Law Enforcement Officers, amicus curiae, submitted a brief.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.

SPINA, J.

The plaintiffs are seven white male police officers employed by the Massachusetts Bay Transportation Authority (MBTA) who contend that they were unlawfully bypassed for promotions to the ranks of sergeant and lieutenant when the chief of the MBTA police department, with the approval of the personnel administrator (administrator) of the human resources division of the Executive Office for Administration and Finance (HRD),⁴ chose instead to promote six minority or female candidates to those positions. We consider in this case whether Personnel Administration Rules PAR. 10 (Rule 10), pertaining to special certifications in the civil service based on race, color, national origin, or sex, was validly enacted, procedurally satisfied, and constitutionally sound. For the reasons that follow, we conclude that Rule 10 is valid and constitutional, and that the actions of the HRD were lawful.

1. Rule 10. Rule 10 provides in pertinent part:

"(1) Prerequisites for special certifications based on race, color, national origin or sex shall be made whenever:

"(a) an appointing authority shall make requisition to fill one or more positions included in said appointing authority's affirmative action plan on file with the administrator, and;

"(b) the administrator has made a written determination substantiating that previous practices of the department and/or of said appointing authority with respect to the filling of such position or positions have discriminated against members of a group, hereinafter referred to as a protected group, on the basis of race, color, sex, or national origin in contravention of any provision of the Constitution of the United States or the Constitution of the Commonwealth, Title VII of the federal Civil Rights Act of 1964 (42 U.S.C. [§ ] 2000e) or any other federal or state statute[,] the administrator may then certify, in addition to names certified in accordance with PAR. 09, the names of a like number of individuals who are members of the protected group and are on an eligible list for such position, in order of their standing.

"(2) At least ten days prior to certifying names under the provisions of PAR. 10(1), the administrator shall post a notice of his intention to do so in the offices of the Department of Personnel Administration and shall mail a copy of such notice to the appointing authority, with instructions to post copies of such notice at all locations where persons whose names may be certified under the provisions of section one may, if employed, be assigned."

2. Factual and procedural background. We recite in some detail the lengthy procedural history of these consolidated cases

because the evidence of discrimination, presented by the MBTA, unfolded over the course of several proceedings before the Civil Service Commission (commission). On September 9, 1996, the chief of the MBTA police department submitted three public safety civil service requisition forms to the HRD in accordance with Rule 10. One form requested special certification of a "females" list for the position of lieutenant from an existing departmental promotional eligible list; the other two forms requested special certification of a "females" list and a "minorities"⁵ list for the position of sergeant from an existing departmental promotional eligible list.⁶ Attached to each requisition form was a statistical breakdown of the racial and gender composition of the MBTA's police force as of May, 1996. The statistics showed that out of a total of 211 police officers in the MBTA police department, fifty-two officers (or 24.6%) were minorities, and fifteen officers (or 7.1%) were women. With respect to the 181 patrol officers, fifty officers (or 27.6%) were minorities, and twelve officers (or 6.6%) were women. With respect to the thirty police officers occupying the positions of sergeant, lieutenant, captain, major, and chief, two officers (or 6.6%) were minorities, and three officers (or 10%) were women.

The HRD approved a "females" list for one lieutenant position, a "females" list for two sergeant positions, and a "minorities" list for three sergeant positions. The chief of the MBTA police department posted notices of his intention to certify names under the provisions of Rule 10 for these positions, and eligible candidates from both the regular lists⁷ and the special certification lists were considered. Effective October 5, 1996, the MBTA promoted a total of nine police officers, with the approval of the HRD. Two lieutenant positions were filled by one white male (William Fleming from the regular list) and one white female (Nancy O'Loughlin from the special certification list).⁸ Seven sergeant positions were filled by two white males (Salvatore Venturelli and Michael Morris from the regular list), two white females (Anne McCall and Irene Reardon from the special certification list), two black males (Herman Wheeler and Michael Lopes from the special certification list), and one black female (Gloria Andrews from the special certification list).⁹ Rule 10 did not establish any quotas with respect to promotions, and the MBTA's affirmative action program was scheduled to expire on January 1, 2000.

The plaintiffs filed an appeal with the commission, pursuant to G.L. c. 31, § 2(b), alleging that they were unlawfully bypassed for promotion in favor of minority and female candidates. By decision dated November 5, 1997, the commission denied the plaintiffs' appeal, concluding that (1) Rule 10 was a valid exercise of the HRD's rule making authority under G.L. c. 31, § 3; (2) the plaintiffs' constitutional claims could not be decided by the commission; and (3) both the MBTA and the HRD attempted in good faith to comply with the procedural requirements of Rule 10. As such, the commission declined to substitute its own judgment for that of the MBTA and the HRD.

The plaintiffs sought judicial review of the commission's determination pursuant to G.L. c. 30A, § 14, and G.L. c. 31, § 44.¹⁰ By decision dated October 20, 1998, a judge in the Superior Court (first Superior Court judge) denied the plaintiffs' motion for judgment on the pleadings with respect to the minority promotions, affirming the commission's determination in that regard. The judge concluded that the statistical data presented by the MBTA, together with its well-documented judicial history of racial discrimination, constituted a "strong basis in evidence" to support the MBTA's use of special certification lists for minorities. The judge further concluded that Rule 10 was narrowly tailored to serve a compelling State interest. In addition, the judge agreed with the commission that the promulgation of Rule 10 was a valid exercise of the HRD's rule making authority under G.L. c. 31, § 3, and that the MBTA and the HRD satisfactorily complied with its provisions.

The judge allowed the plaintiffs' motion for judgment on the pleadings with respect to the gender-based promotions, reversing the commission's determination in that regard and remanding the matter to the commission for further findings whether there was a "strong basis in evidence" to justify the use of a gender-based classification in determining eligibility for promotions. The judge opined that the mere absence of women in the positions of sergeant and lieutenant did not warrant a finding that women had been subjected to past gender discrimination by the MBTA, and she concluded that the statistical data presented by the MBTA did not constitute a "strong basis in evidence" to support its use of special certification lists for women. The plaintiffs filed a timely notice of appeal with respect to the judge's decision affirming the minority promotions; the MBTA filed a timely notice of appeal with respect to the judge's decision regarding the gender-based promotions.

On remand to the commission, the MBTA presented the testimony of Dr. Leonard A. Cupingood, an expert in the field of statistics, who performed, as part of his work, utilization analyses comparing the gender composition of an employer's work force with the gender composition of similar occupations in the relevant labor market, using the census as his primary data base.¹¹ Dr. Cupingood compared, inter alia, the number of women employed by the MBTA police department with the number of women in the field of "protective services" who were performing police-related work in the Boston metropolitan area,¹² taking into consideration the age, education, and income constraints that would be associated with an MBTA position. He concluded that there was a statistically significant underutilization of women in the MBTA police department in 1996. Nonetheless, by decision dated December 6, 2000, the commission found that the evidence presented by the MBTA was insufficient to show past discrimination justifying the use of gender-based classifications in determining eligibility for promotions. The MBTA filed a complaint for judicial review of the commission's determination pursuant to G.L. c. 30A, § 14, and G.L. c. 31, § 44. See note 3, supra.

Before this appeal was considered, the MBTA filed a motion under G.L. c. 30A, § 14(6), to present additional evidence to the...