Bradley v. City of Lynn

• Decision Date: 08 August 2006
• Docket Number: Civil Action No. 05-10213-PBS.
• Parties: Jacob BRADLEY, Noah Bradley, Keith Ridley, and Jared Thomas, Plaintiffs, v. CITY OF LYNN, et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

443 F.Supp.2d 145

Jacob BRADLEY, Noah Bradley, Keith Ridley, and Jared Thomas, Plaintiffs, v. CITY OF LYNN, et al., Defendants.

Civil Action No. 05-10213-PBS.

United States District Court, D. Massachusetts.

August 8, 2006.

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Nadine M. Cohen, Lawyers' Committee for Civil Rights Under Law, Mark D. Selwyn, Wilmer Cutler Pickering Hale and Dorr LLP, Alfred Gordon, Harold L. Lichten, Shannon E. Liss-Riordan, Pyle, Rome, Lichten, Ehrenberg & Liss-Riordan, P.C., Boston, MA, for Plaintiffs.

George S. Markopoulos, James Lamanna, City Solicitor's Office, Lynn, MA, Ronald F. Kehoe, Sookyoung Shin, Attorney General's Office, Boston, MA, for Defendants.

MEMORANDUM AND ORDER

SARIS, District Judge.

I. INTRODUCTION

In this class action, the plaintiffs¹ allege that the written civil service cognitive ability examination used in 2002 and 2004 to qualify and rank applicants has had a disparate and adverse impact on Black and Hispanic candidates for entry-level firefighter positions in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), (k) (2006), and the federal consent decree in Boston Chapter, NAACP, Inc. v. Beecher, 371 F.Supp. 507 (D.Mass.1974) (the "Beecher decree"). The defendants are the Human Resources Division of the Commonwealth of Massachusetts (the "HRD"), which develops and administers the examination, the City of Lynn, and various public officials. The HRD argues that because of the statutory veterans preference, residency requirements, and other selection factors, the examination has no disparate impact on the bottom-line hiring of Black and Hispanic candidates for entry-level firefighter positions in Massachusetts.

Pursuant to Fed.R.Civ.P. 23(a) and (b)(2), the Court certified the plaintiff firefighter and police officer classes on March 24, 2006. The Court certified the firefighter class as "[a]ll minorities (Black and Hispanic) who took the civil service examination for the position of fire fighter within the Commonwealth of Massachusetts in the years 2002 and 2004." (Docket No. 81.) A six-day bench trial for the liability phase of the firefighter class began on April 11, 2006, and the parties rested on May 4, 2006.

The following witnesses testified for the plaintiffs: Dr. Frank Landy, an expert in industrial psychology and statistics and a former consultant to the HRD; Dr. Joel Wiesen, an expert in industrial psychology and statistics and the HRD Chief of Test Development and Validation between 1977 and 1993; Elizabeth Dennis, the former HRD Director of the Civil Service Unit between the mid-1990s and 2003; and Kevin Bradley, a Lynn firefighter since 1977 and the father of two of the named plaintiffs. The following witnesses testified for the HRD: Dr. Rick Jacobs, an expert in industrial psychology and statistics and a former and current consultant to the HRD; Marc Chavanne, the HRD Deputy Director of Selection and Validation between 1991 and 1996; and Sally McNeely, the current, HRD Director of the Organizational Development Group since 2003.

The parties submitted closing briefs, and oral argument was held on June 9, 2006. After trial, oral argument, and review of the post-trial submissions, the Court holds that the written civil service cognitive ability examinations used in 2002 and 2004 have an adverse and disparate impact on the employment opportunities of Black and Hispanic candidates for entrylevel firefighter positions, and that the selection process that uses the examination scores to rank candidates is not job related and consistent with business necessity under applicable federal law and the longstanding Beecher decree. The plaintiffs have also demonstrated that there are alternative selection methods with less discriminatory effects that would serve the employer's legitimate interest in selecting capable firefighters based in part on cognitive ability. Accordingly, I conclude that judgment on liability should enter in favor of the plaintiff firefighter class.

II. FINDINGS OF FACT

A. Statutory and Administrative Framework

The civil service law currently applies to the fire departments of approximately 110 municipalities in Massachusetts, including Boston and Lynn. To become a firefighter in a municipality where the civil service law applies, an individual must first pass a statewide civil service examination. See Mass. Gen. Laws ch. 31, §§ 6, 59.

The personnel administrator for the HRD (the "HRD Administrator") conducts, determines the form, method, and subject matter of, and develops the examinations, id. §§ 5(e), 16; prepares and posts notices of the examinations, id. §§ 18-19; and determines the passing requirements, id. § 22. Based on the examination results, the HRD Administrator ranks the names of those who pass on the "eligible list" based on the following statutory priority. Id. §§ 25, 26.

The names of persons who pass examinations for original appointment to any position in the official service shall be placed on eligible lists in the following order: (1) disabled veterans, in the order of their respective standings; (2) veterans, in the order of their respective standings; (3) widows or widowed mothers of veterans who were killed in action or died from a service connected disability incurred in wartime service, in the order of their respective standings; (4) all others, in the order of their respective standings.

Id. § 27.

To hire for a firefighter vacancy, a municipality's appointing authority submits a request to the HRD Administrator, who then certifies "from the eligible list sufficient names of persons for consideration" in rank order. Id. § 6. In addition to the statutory priority, the appointing authority may have the HRD Administrator rank residents ahead of non-residents, see id. § 58, and may request special certification lists for candidates with certain qualifications such as Spanish-language abilities (Ex. 9, at 16 (Pers. Admin. Rule 8(4))). The HRD and the HRD Administrator (the "State defendants") have interpreted the civil service law as giving them discretion to decide how many names should be certified from the eligible list.

Once the HRD Administrator certifies a list to a municipality, each candidate must sign the certified list and express a willingness to accept employment in order to be considered for appointment. Mass. Gen. Laws ch. 31, § 25. According to the HRD's Personnel Administration Rules, the appointing authorities for a municipality "may appoint only from among the first 2n + 1 persons named in the certification willing to accept appointment," where "n" is the number of vacancies. (Ex. 9, at 16-17 (Pers. Admin. Rule 9(1)).) For five vacancies, for example, a municipality may only appoint from the first eleven named in the certification willing to accept. (See id.; see also Exs. 33P, 33Q (stating on certification lists that selection "must be" within first 2n + 1 "who will accept").)

In evaluating the candidates within the "2n + 1" pool, a municipality may establish its own hiring criteria, such as a drug test, a background check, or an interview. After conditional offers are made by the municipality, the HRD administers a pass/fail physical abilities test. Some municipalities conduct a full medical or psychological examination. According to Ms. McNeely, some municipalities use these post-certification hurdles to determine the composition of the "2n + 1" pool.

None of the post-certification hurdles, however, changes a candidate's ranking on the list. By statute, to bypass higher-ranked individuals on the certified list to hire lower-ranked individuals, a municipality must submit a written statement to the HRD Administrator justifying the bypass. Mass Gen. Laws ch. 31, § 27. The HRD Administrator has the right to review and withdraw any bypass appointment. MacHenry v. Civil Serv. Comm'n, 40 Mass.App.Ct. 632, 634-36, 666 N.E.2d 1029, 1030-31 (Mass.App.Ct.1996).²

B. Beecher Firefighter Litigation

The civil service examination for firefighters has been the subject of employment discrimination litigation since the 1970's. The Beecher class action was brought by the Boston Chapter, NAACP, on behalf of a statewide class of Black and Spanish-surnamed applicants for the firefighter position. Beecher, 371 F.Supp. at 509-10. In Beecher, although the available examination statistics were "meager," after comparing the minority population and employment statistics, the district court concluded that the plaintiffs established a prima facie case that the written examination had a discriminatory effect on Blacks and Spanish-surnamed persons and that the defendants failed to demonstrate that the examination was substantially related to job performance. 371 F.Supp. at 514, 517.

As a result, the district court issued a consent decree, which established certification quotas for minorities in "all cities and towns subject to Civil Service law" until "a city or town achieves a complement of [firefighter] minorities commensurate with the percentage of minorities within the community." Id. at 522-23. Importantly, the decree ordered:

The Massachusetts Division of Civil Service shall cease using written firefighter entrance examinations of the type administered by the Division of Civil Service in August 1971, for the purpose of determining qualifications for the selection of firefighters. Should the Division of Civil Service desire to utilize entrance examinations in the future for the purpose of selecting firefighters, such examinations shall be demonstrably job-related and validated in accordance with the "Guidelines on Employees Selection Procedures" issued by the Equal Employment Opportunity Commission, 29 C.F.R. § 1607.1 et seq., or otherwise shown to have no discriminatory impact. If the parties disagree as to whether a written examination has been shown to be valid within the meaning of the Guidelines,,the question of their validity and job relatedness shall be...