Lopez v. Commonwealth

• Decision Date: 09 November 2012
• Docket Number: SJC–11013.
• Citation: 463 Mass. 696,978 N.E.2d 67
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Pedro LOPEZ & others v. COMMONWEALTH & another.

463 Mass. 696

978 N.E.2d 67

Pedro LOPEZ & others ¹

v.COMMONWEALTH & another.²

SJC–11013.

Supreme Judicial Court of Massachusetts,

Suffolk.

Submitted May 7, 2012.

Decided Nov. 9, 2012.

Harold L. Lichten (Stephen S. Churchill with him) for the plaintiffs.

Sookyoung Shin, Assistant Attorney General, for the defendants.

Catherine C. Ziehl & Beverly I. Ward for Massachusetts Commission Against Discrimination, amicus curiae, submitted a brief.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

DUFFLY, J.

The named plaintiffs, African–American and Hispanic police officers employed by municipalities throughout the Commonwealth who are subject to the civil service law, G.L. c. 31, brought suit in the Superior Court on behalf of themselves and a class of similarly situated individuals against the defendants, the Commonwealth and the division of human resources (division). The plaintiffs alleged that the division engaged in racial discrimination through the creation, design, and administration of a multiple-choice examination for candidates seeking promotion to the position of police sergeant. According to the complaint, the plaintiffs' employing municipalities (which are not named defendants in this action) relied on a ranked list of candidates who had passed this examination in making promotional decisions. The plaintiffs maintained that, because of the examination's adverse, discriminatory impact on African–American and Hispanic candidates, they were ranked lower on the list than their nonminority counterparts, despite being equally qualified. As a result of not being included at the top of the list from which promotions were made, they were denied promotional opportunities.

A Superior Court judge granted the defendants' motion to dismiss on the ground that the Commonwealth had not waived its sovereign immunity from suit and, in the alternative, that the plaintiffs had failed to state any claim on which relief could be granted. We granted the plaintiffs' application for direct appellate review. We conclude that the plaintiffs' claim under G.L. c. 151B, § 4(4A), should not have been dismissed because it alleges adequately that the defendants interfered with the plaintiffs' enjoyment of rights protected by G.L. c. 151B, specifically the plaintiffs' right to be free of racial discrimination in opportunities for promotion, but that the other claims were dismissed properly.

1. Background. a. Prior proceedings. In 2007, the plaintiffs sued the division and the plaintiffs' municipal employers in the United States District Court for the District of Massachusetts, alleging disparate impact race discrimination in violation of a provision of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e–2(k)(1)(A)(i) (2006) (Title VII). ³Lopez v. State, 588 F.3d 69, 72–73 (1st Cir.2009)( Lopez ). The State defendants moved to dismiss on the ground of immunity from suit, arguing that Title VII abrogates immunity under the Eleventh Amendment to the United States Constitution only when a State functions as an employer, and that the division is not the plaintiffs' employer. Id. at 73. The DistrictCourt judge denied the motion, but the United States Court of Appeals for the First Circuit reversed, holding that the division is not the plaintiffs' employer within the meaning of Title VII. Id. at 89. On remand, the case proceeded to trial against the municipal employers. In 2009, the instant action was commenced in the Superior Court.

b. Factual allegations. The plaintiffs filed the present suit in their individual capacities and as representatives of a class of similarly situated individuals, defined as “[a]ll Black and Hispanic police officers within the Commonwealth of Massachusetts who are employed in cities and towns covered by the [S]tate civil service law, [G.L. c.] 31, and who have taken the 2005, 2006, 2007 and 2008 police sergeant promotional examination administered by [the division] but have not been reached for promotion.” We recite those facts alleged in the complaint ⁴ that plausibly suggest entitlement to relief, taking them as true for purposes of our review of the judge's ruling on the motion to dismiss. See Iannacchino v. Ford Motor Co., 451 Mass. 623, 635–636, 888 N.E.2d 879 (2008)( Iannacchino ).

The division, an agency of the Commonwealth, creates, designs, and administers promotional examinations to candidates for promotion to police sergeant.⁵ The examinations are comprised of one hundred multiple choice questions taken from “law enforcement and related textbooks.” To achieve a passing score, candidates must score at least seventy points; the maximum possible score is one hundred points. The examinations “have, over the last [twenty] years, been shown to have a significant adverse impact upon ... (Black and Hispanic) test takers while not having been shown to be valid predictors of job performance for a police sergeant.” Despite the fact that the division is aware of the test's flaws, assert the plaintiffs, it has “taken no action to design a less discriminatory and more job-related examination procedure.”

Municipalities that opt to use the division's examination select candidates for promotion from those at the top of a list prepared by the division, on which passing candidates are ranked by the scores they achieved on the examination. Alternatively, municipalities may choose to conduct their own promotional examinations. However, in “virtually” all municipalities at issue in this action, the division's examination was used without modification in some or all of the four relevant years.

A majority of the plaintiffs passed the examination but did not receive scores high enough to be considered for promotion. According to the complaint, as a result of the use of the division's examination, African–American and Hispanic police officers have been ranked significantly lower than their nonminority counterparts, although they are otherwise equally qualified to be police sergeants, and “few, if any, minorities have been promoted to the position of sergeant ... in civil service municipalities throughout the Commonwealth.” As a result, there is a significant disparity between the number of African–American and Hispanic police sergeants in the Commonwealth “and their corresponding numbers in entry-level police officer ranks.” ⁶

The complaint asserts that the division engaged in discriminatory promotion practices in violation of G.L. c. 151B, § 4(1), (4A), and (5) (hereinafter § 4[1], § 4[4A], and § 4[5], respectively). The complaint also alleges that the division violated G.L. c. 93, § 102, which provides in relevant part that all persons shall have the same rights to make and enforce contracts as those enjoyed by “white male citizens.” The defendants moved to dismiss the complaint for lack of jurisdiction, Mass. R. Civ. P. 12 (b)(1), 365 Mass. 754 (1974), on the basis of sovereign immunity; or, in the alternative, for failure to state a claim on which relief can be granted, Mass. R. Civ. P. 12(b)(6), 365 Mass. 754 (1974). By a margin indorsement, the judge allowed the motion to dismiss for the reasons stated in the division's memorandum.

2. Discussion. a. Standard of review. “We review the allowance of a motion to dismiss de novo,” Curtis v. Herb Chambers I–95, Inc., 458 Mass. 674, 676, 940 N.E.2d 413 (2011), accepting as true “the factual allegations in the plaintiffs' complaint, as well as any favorable inferences reasonably drawn from them.” Ginther v. Commissioner of Ins., 427 Mass. 319, 322, 693 N.E.2d 153 (1998). In determiningwhether the factual allegations are sufficient to survive a motion to dismiss under rule 12(b)(6), we consider whether the allegations “ ‘plausibly suggest[ ] [and are] (not merely consistent with)’ an entitlement to relief.” Iannacchino, supra at 636, 888 N.E.2d 879, quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)( Twombly ). Although detailed factual allegations are not required, a complaint must set forth “more than labels and conclusions.... Factual allegations must be enough to raise a right to relief above the speculative level ... [based] on the assumption that all the allegations in the complaint are true (even if doubtful in fact)....” Iannacchino, supra, quoting Twombly, supra at 555, 127 S.Ct. 1955.

b. Sovereign immunity. Before addressing the plaintiffs' theories of liability under G.L. c. 151B, we evaluate whether, as asserted by the plaintiffs, the Commonwealth has waived its sovereign immunity under G.L. c. 151B. As a general matter, “the Commonwealth or any of its instrumentalities ‘cannot be impleaded in its own courts except with its consent, and, when that consent is granted, it can be impleaded only in the manner and to the extent expressed [by] statute.’ ” DeRoche v. Massachusetts Comm'n Against Discrimination, 447 Mass. 1, 12, 848 N.E.2d 1197 (2006)( DeRoche ), quoting General Elec. Co. v. Commonwealth, 329 Mass. 661, 664, 110 N.E.2d 101 (1953). See Lopes v. Commonwealth, 442 Mass. 170, 175, 811 N.E.2d 501 (2004) (“Sovereign immunity bars a private action against a State in its own courts absent consent by the Legislature ...”). Waiver of sovereign immunity will not be lightly inferred; “[c]onsent to suit must be expressed by the terms of a statute, or appear by necessary implication from them.” Woodbridge v. Worcester State Hosp., 384 Mass. 38, 42, 423 N.E.2d 782 (1981). In asserting that the Commonwealth has not consented to suit and therefore retains sovereign immunity, the division argues that express statutory waiver must authorize suit for each of the plaintiffs' particular claims under § 4(1), (4A), and (5), in the manner and to the extent expressed in those subsections. We disagree.

General Laws c. 151B, § 9, permits “[a]ny person claiming to be aggrieved by a practice made unlawful under this chapter” to bring a civil action for damages or injunctive relief. Section...