Johnson v. Commissioner of Public Safety
| Decision Date | 24 December 1968 |
| Citation | 355 Mass. 94,243 N.E.2d 157 |
| Parties | Grace V. JOHNSON v. COMMISSIONER OF PUBLIC SAFETY. (and a companion case between the same parties). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Richard E. Mastrangelo, Asst. Atty. Gen., for Commissioner of Public safety.
Lewis H. Weinstein, Boston (Judith L. Olans, Boston, with him), for Grace V. Johnson.
Before WILKINS, C.J., and SPALDING, WHITTEMORE, CUTTER, SPIEGEL and REARDON, JJ.
These two cases were consolidated for trial in the Superior Court and are here on a consolidated appeal. One is a petition for a writ of mandamus and the other is a bill in equity for declaratory and injunctive relief. Grace V. Johnson will be referred to as the petitioner, and the Commissioner will be referred to as the respondent. The petitioner seeks to determine her right to take a promotional examination to the rank of staff sergeant in the uniformed branch of the State police and to be promoted from her present position of policewoman to the position of staff sergeant. An interlocutory decree was entered requiring the respondent to permit the petitioner to take the promotional examination. In the mandamus action the trial judge ordered 'that mandamus issue compelling respondent properly to perform his duty to administer the law in a non-discriminatory manner, and to promote petitioner to a vacancy in the position of staff sergeant if she should pass the promotional examination.' In the equity suit a final decree was entered in which it was 'declared, ordered, adjudged and decreed that respondent may not discriminate against petitioner because of her sex; that a policewoman such as petitioner in the pay grade of Sergeant may be promoted to the next higher grade of Staff Sergeant; that respondent is under a duty to take all necessary steps to ensure that petitioner's examination, written and oral, is graded with impartiality and free of discrimination; that respondent is under a duty to promote petitioner to a vacancy in the position of Staff Sergeant if she should pass the promotional examination * * *.' The respondent appealed from the order in the mandamus case and from the final decree in the equity suit. The judge made findings of fact and rulings of law. The evidence is reported.
We summarize the pertinent findings. Since May 22, 1956, the petitioner has been a member of the uniformed branch of the State police with the rank of policewoman at the pay scale of special officer sergeant. Her duties are primarily in the field of criminal investigation, particularly of offences involving women and children. Her performance of these duties has always been exemplary.
On February 28, 1967, pursuant to the provisions of G.L. c. 22, § 9O, as inserted by St.1965, c. 785, § 2, notice of the first written examination for promotion to all ranks within the uniformed branch was announced. The petitioner seasonably applied for the examination for promotion to the position of technical sergeant. Her application was received on March 10, 1967. On April 4, 1967, the respondent issued a departmental bulletin which, inter alia, abolished the rank of technical sergeant and incorporated it within the rank of staff sergeant. The petitioner's application was rejected on April 12, 1967. She was permitted to take the written portion of the examination for promotion to staff sergeant pursuant to the interlocutory decree entered on May 19, 1967.
Prior to August 29, 1966, Rule 4.1 of the 'Rules and Regulations for the Government of the Massachusetts State Police--Uniformed Branch' (hereinafter referred to as Rules and Regulations) established in pertinent part the following 'order of ranks' within the uniformed branch: 'Staff Sergeant, Technical Sergeant, Detective Sergeant, Sergeant, Special Officer Sergeant, Policewoman, Corporal, Trooper.' On August 29, 1966, a new Rule 4.1 was promulgated. It established in pertinent part the following 'order of ranks': 'Staff Sergeant, Technical Sergeant, Detective Sergeant; Sergeant, Special Officer Sergeant; Corporal; Trooper; Policewoman.' Rule 16.1 of the Rules and Regulations defines 'promotions' as a 'change from duties of one rank to the duties of a higher rank, which shall involve a change in salary to the rates of a higher rank.' Rule 16.1 establishes in pertinent part the following pay scale for the ranks and grades:
"Job Group Rank
15 S. P. Staff Sergeant
15 S. P. Technical Sergeant
15 S. P. Detective Sergeant
14 S. P. Sergeant
14 S. P. Special Officer Sergeant
14 S. P. Policewoman
13 S. P. Corporal
12 S. P. Trooper"
The duties of a staff sergeant range from the 'general command of various Troop Headquarters to such specialized fields as criminal investigation, photography and ballistics.' More than thirty staff sergeants are within these and related fields. The functions of a staff sergeant are 'within the area of petitioner's training and demonstrated competence' and there is a 'special need for police officers who are women' to specialize in matters affecting women and children in the investigation of certain criminal matters.
The judge made the following rulings. Under the Rules and Regulations the only position to which the petitioner can be promoted in the uniformed branch is that of staff sergeant. The promotion of the petitioner to the position of trooper or corporal would be in violation of the Rules and Regulations because the pay grades for those positions are lower than her present pay grade. The petitioner 'fully satisfies any and all of the eligibility requirements for the examination and for promotion to the position of staff sergeant.' The 'particular skills, talents and propensities' of policewomen should be made available to the public. The respondent's actions discriminate against the petitioner because of her sex and are an unlawful employment practice within G.L. c. 151B, § 4(1), 1 as amended. The respondent has acted 'arbitrarily, unreasonably, and indeed capriciously' in rejecting the petitioner's application on April 12, 1967.
The parties have stipulated the following facts which occurred subsequent to the entry of the final decree. Having taken the written portion of the examination for promotion to the position of staff sergeant pursuant to the interlocutory decree, the petitioner took the oral portion of the examination. On October 31, 1967, the respondent issued an eligibility list for promotion to that position. The petitioner's name was the fortieth on the list. As a result of promotions and at least one retirement, the petitioner's name is the only one remaining on that list.
1. The respondent contends that the petitioner was ineligible to take the promotional examination because she had not 'completed not less than one year of service in the next subordinate grade prior to the final date of filing the application' as required by G.L. c. 22, § 9O. The respondent argues that the 'next subordinate grade' is determined by the 'order of ranks and grades' set forth by Rule 4.1 and not the 'schedule of Job Groups' set forth by Rule 16.1. The respondent directs our attention to the language of Rule 16.1 and G.L. c. 22, § 9O, and to our decision in Sholock v. Civil Serv. Commn., 348 Mass. 96, 99, 202 N.E.2d 231. The petitioner, however, contends that the word 'grade' in c. 22 refers to the 'scale of pay grades' set forth by Rule 16.1 and points to an opinion of the Attorney General solicited by the respondent to that effect. See Rep. A.G., Pub.Doc. No. 12, 1966, p. 386.
In Sholock v. Civil Serv. Commn., supra, p. 99, 202 N.E.2d 230, we were confronted with a different statute, one which defined 'grade' to be 'a subdivision of a class, including all positions with substantially identical authority, duties and responsibility as distinct from all other grades in that class.' G.L. c. 31, § 1, as amended. Chapter 22 does not contain a similar definition of the term. Furthermore, the application of the interpretation urged by the respondent to the Rules and Regulations as they stood when §§ 9O to 9R were enacted would lead to the following results: a sergeant in pay group 14 would be required to take and pass examinations for detective sergeant, technical sergeant and staff sergeant before being eligible to take the examination for promotion to lieutenant in pay group 16; a trooper would be required to spend one year as a policewoman before being eligible for the examination for promotion to special officer sergeant. 'Such a result might fairly be characterized as absurd, and an intention to accomplish this absurd result, unless clearly required by the language of the statute, is not to be attributed to the Legislature.' Curran, petitioner, 314 Mass. 91, 95, 49 N.E.2d 432, 434. In addition, G.L. c. 30, § 46(7), (8), indicates that the Legislature wished to prevent the possibility of a promotion resulting in a salary decrease. We think that the Legislature intended that the list of pay grades in Rule 16.1 determines the 'next subordinate grade.' The petitioner, having 'completed not less than one year' as a policewoman was eligible to take the promotional examination for the grade of staff sergeant.
2. The petitioner contends that the failure of the respondent to promote her to the grade of staff sergeant constitutes discrimination against her solely because of her sex and therefore violates the Fourteenth Amendment to the Constitution of the United States and the Massachusetts Fair Labor Practices Act, G.L. c. 151B, § 4(1), as amended. We disagree. We find nothing in the record to support the trial judge's findings and rulings in this regard. General Laws c. 22, § 9O, requires the respondent to make an appointmen to a vacancy 'from the top three candidates on the appropriate list who are eligible for promotion.' Candidates are listed according to their scores on the...
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