LeBoeuf v. Ramsey

Citation503 F. Supp. 747
Decision Date16 September 1980
Docket NumberCiv. A. No. 75-2915-K.
PartiesLynda LeBOEUF, Plaintiff, v. Anne RAMSEY et al., Defendants.
CourtU.S. District Court — District of Massachusetts

COPYRIGHT MATERIAL OMITTED

Robert J. Pleshaw, Thomas F. McKenna, Boston, Mass., for plaintiff.

Armand Fernandes, Jr., New Bedford, Mass., for defendant Pelletier.

John A. Markey, New Bedford, Mass., for defendants Ann Ramsey, Nancy Beecher, Wayne A. Budd, Richard J. Healey, Richard Linden, John Donegan.

Betty E. Waxman, Asst. Atty. Gen., Government Bureau, Boston, Mass., for defendants.

MEMORANDUM AND ORDER

KEETON, District Judge.

I. Introduction

This is an action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and under 42 U.S.C. § 1981 and 42 U.S.C. § 1983 and the Fourteenth Amendment, alleging discrimination in employment on the basis of sex. Plaintiff alleges, first, that defendants rejected her for a position on the New Bedford Police Department because of the application of a minimum height requirement and, second, that the imposition of the height requirement had a discriminatory impact on women.

The case came on for trial before the court on May 20 and 21, 1980. Arguments were heard on May 27, 1980, and the parties were allowed time to file additional memoranda. After consideration of the evidence adduced and the arguments made at trial and the proposed findings and conclusions,1 memoranda, and other documents submitted by the parties, the court has reached the findings and conclusions stated here.

II. Jurisdiction

This court has subject matter jurisdiction over this case under 28 U.S.C. §§ 1331, 1343(3) and (4), and 42 U.S.C. § 2000e-5(f).

III. Findings of Fact
A.

Plaintiff Lynda L. LeBoeuf, now known as Lynda L. Costa, is a thirty-two year old woman who is five feet three inches tall.

Defendant John A. Markey is the Mayor of the City of New Bedford and has been since 1971. In that capacity he has the appointing authority for the Police Department.

Defendant Joseph A. Pelletier is the Chief of Police of the City of New Bedford and has been since May, 1970. In that capacity he is responsible for the supervision, control, and management of the New Bedford Police Department.

Defendants Rosalind Pool Brooker, Brian Lawler, Donald R. Poory, George Rogers, William Saltzman, Paul G. Hamel, Richard Bachand, Donald R. Nelson, Richard Hinkle, Manuel F. Neto, and Ralph J. Saulnier comprised the New Bedford City Council on or about July 1, 1975. In that capacity they reviewed all bills and requirements submitted by the Mayor. They also had power to confirm appointments of police officers submitted by the Mayor.2

Defendants Nancy Beecher, Wayne A. Budd, Richard J. Healey, Richard Linden, and John Donegan comprised the Massachusetts Civil Service Commission on or about July 1, 1975. Since that time Amelia Miclette has replaced Nancy Beecher as Chair-person of the Commission.

The Director of Civil Service for the Commonwealth of Massachusetts from at least July 1, 1973 through July 1, 1975, was Edward W. Powers. On July 1, 1975, the position of Director of Civil Services was abolished and the duties of the Director were allocated to the newly created position of Personnel Administrator. On July 1, 1975, defendant Anne Ramsey assumed the duties of Personnel Administrator. The position is now held by David Marchand.3

B.

Appointments to the New Bedford Police Department are subject to Massachusetts Civil Service laws, rules, regulations, and practices.

The New Bedford Police Department makes appointments from a list of eligible applicants that is certified to it by the state civil service personnel division. The certified lists at the center of this litigation were derived from a 1972 written examination for the position of police officer. Applicants' names appeared on this list in order of their scores on the test, adjusted for various statutory4 and court-ordered5 preferences.

On July 24, 1973, the New Bedford City Council approved Mayor Markey's establishment of a minimum height requirement for police officers of 5 feet 6 inches. At the time, a Massachusetts statute authorized such action.6 Appropriate state authorities were notified of the adoption of the height requirement. Prior Massachusetts law had also authorized imposition of a height requirement, and the City of New Bedford had first adopted a height requirement for police officers in 1972. New Bedford abolished the height requirement in November 1974.7

Before 1974, men and women police personnel in New Bedford held distinct positions with distinct duties, the men serving as "police officers" and the women as "policewomen." Different examinations were administered for the two positions. After February 1974 both men and women were eligible to be "police officers" and were appointed from so-called "integrated lists" derived from a common examination. Nevertheless, female police officers were not permitted to engage in street duty until January, 1977.

In the spring of 1973 New Bedford's certified list of eligible applicants for policewomen expired by operation of law. On or about that time New Bedford had an opening for at least one policewoman position and requested that the Division of Civil Service hold an open competitive examination for the position. No such examination was ever held. The city continued to seek a policewoman. It was advised that an exemption would have to be sought from the Massachusetts Commission Against Discrimination ("MCAD") since a gender-specific hiring was to be made. Such a request was submitted by letter of March 29, 1974.8 MCAD replied by letter of May 9, 1974, authorizing New Bedford to use the certified list for policewomen already in existence for Taunton, Massachusetts.9 This list was never certified to New Bedford by the Division of Civil Service.

The Division of Civil Service supplied New Bedford with a certified list of eligible applicants for police officer on July 30, 1974. This was an "integrated list," containing names of eligible men and women ranked in accordance with scores on the 1972 examination, adjusted for various statutory and court-ordered preferences.10 Plaintiff's name was not contained on this list.

On August 7, 1974, Edward M. Powers, then Director of the Division of Civil Service, notified Mayor Markey that plaintiff's name inadvertently had been omitted from the list. He instructed the Mayor to insert her name after that of William Grovell and before that of John Lopes. This position was consistent with the ranking that would have been afforded to an applicant who not only had scored 93.3% on the examination (as plaintiff had) and was a non-veteran resident of New Bedford (as plaintiff was) but also was a member of a racial minority to be accorded preference under Castro, supra (which plaintiff was not). Plaintiff's name should have been placed on the list in a position consistent with someone who had scored 93.3% on the 1972 written examination and was a non-minority, non-veteran resident of New Bedford.

On or about February 25, 1975, the Division of Civil Service took steps to correct the erroneous ranking of plaintiff on the list and by letter instructed New Bedford to place her name below that of Robert L. Linquest and above that of James F. Camacho, Jr., both of whom had filed applications for the police officer examination that indicated that they were non-minority, non-veteran residents of New Bedford. Neither Camacho nor Linquest has been appointed a police officer in New Bedford as a result of the July 30, 1974 certification. Both Grovell and Lopes, between whose names plaintiff's was originally placed, were appointed from the July 30 list.

As a result of the error in the initial placement of her name, plaintiff was interviewed in August, 1974 for the position of police officer in New Bedford. She was rejected because she failed to meet the 5 feet 6 inches height requirement. If plaintiff's name had been placed on the list in the proper position, her name would not have been reached and she would not have been interviewed for the position of police officer in August, 1974. This list has now expired. The name of the last person to be appointed from the list appears on the list above plaintiff's name. No man whose name appears below plaintiff's on the list was appointed from the list. Several women whose names appear below plaintiff's were appointed from lists derived from this list.11

The Division of Civil Service in compiling the list from the 1972 examination did not take account of an applicant's height. The height requirement was a local option permitted by statute, and some municipalities did not impose a height requirement. Accordingly, applicants who failed to satisfy a municipal height requirement were rejected at the time of the interview by the municipality.

Because of its continuing need for a female police officer to perform special duties, related, for example, to female prisoners, and because no woman's name appeared sufficiently high on the July 30, 1974 list to be reached in the normal course, New Bedford requested and received a special list, dated August 12, 1974, that was derived from the July 30, 1974 list but contained only the names of female applicants. Plaintiff's name appeared first on this list.

Two appointments were made from the August 12 list.12 The appointees ranked third and fourth on the list.13 They both were at least 5 feet 6 inches tall. Plaintiff and the woman who ranked second were both less than 5 feet 6 inches tall and were rejected because they failed to satisfy the minimum height requirement.

Plaintiff offered at trial two sets of statistics to show the differential impact of a height requirement upon women as compared to men.14 The first set was a table entitled "Height in inches, average height and selected percentiles, by age and sex: United States, 1960-62." This table was described at trial by plaintiff's counsel...

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