Smith v. City of Bos.

• Decision Date: 16 November 2015
• Docket Number: CIVIL ACTION NO. 12-10291-WGY
• Citation: 144 F.Supp.3d 177
• Parties: Bruce Smith, Paul Joseph, John M. Johnson, Robert Tinker, Martin Joseph, Kim Gaddy, Brian Keith Latson, Leighton Facey and Marwan Moss, Plaintiffs, v. City of Boston, Defendant.
• Court: U.S. District Court — District of Massachusetts

144 F.Supp.3d 177

Bruce Smith, Paul Joseph, John M. Johnson, Robert Tinker, Martin Joseph, Kim Gaddy, Brian Keith Latson, Leighton Facey and Marwan Moss, Plaintiffs,

v.City of Boston, Defendant.

CIVIL ACTION NO. 12-10291-WGY

United States District Court, D. Massachusetts.

Signed November 16, 2015

Benjamin Weber, Harold L. Lichten, Lichten & Liss-Riordan, P.C., Stephen S. Churchill, Fair Work, P.C., Boston, MA, for Plaintiffs.

Amy E. Ambarik, Nicole I. Taub, Boston Police Department, John M. Simon, Kay H. Hodge, Geoffrey R. Bok, Stoneman, Chandler & Miller, Boston, MA, for Defendant.

FINDINGS OF FACT, RULINGS OF LAW, AND ORDER

YOUNG, D.J.

I. INTRODUCTION

In this action, ten black police sergeants (the “Plaintiffs”) employed by the Boston Police Department (the “Department”) brought suit against the City of Boston (“Boston” or the “City”) under Title VII of the Civil Rights Act of 1964, alleging that the multiple-choice examinations the Department administered in 2005 and 2008 to select which sergeants to promote to the rank of lieutenant had a racially disparate impact on minority candidates and were insufficiently job-related to pass muster under Title VII.¹ The Plaintiffs also asserted a pendent claim under Massachusetts General Laws Chapter 151B (“Chapter 151B”).² The City disputes that the exams had a disparate impact on minority candidates and claims that, even if they did, the exams were sufficiently job-related to survive a Title VII challenge.

This is a profoundly important case, one that evokes the finest of our nation's aspirations to give everyone equal opportunity and a fair shot. In deciding this case, the Court first emphasizes what this case is not about: this is not a case about conscious racial prejudice. Rather, the Plaintiffs' case is rooted in their allegation that the seemingly benign multiple-choice examination promotion process, while facially neutral, was slanted in favor of white candidates.

The parties engaged in a ten-day bench trial and submitted exhaustive post-trial briefs. The long trial involved substantial and dense discussions of statistical analysis. Consequently, the decision that follows is admittedly complex, but its conclusion is simple: the Department's lieutenant-selection process—ranking candidates for promotion based on their scores on an exam administered in 2008 (“2008 exam”)—had a racially disparate impact and was not sufficiently job-related to survive Title VII scrutiny. Accordingly, the Court imposes liability on the City.³

II. PROCEDURAL HISTORY

The Plaintiffs initiated this case in federal court in February 2012. Compl., ECF No. 1. Judge Tauro, to whom this case was originally assigned, dismissed without prejudice the claims of two of the Plaintiffs (John Johnson and Robert Tinker) for their failure to exhaust administrative remedies. Mem., ECF No. 28. Once this case was transferred to this Session on December 26, 2013, Mem., ECF No. 56, this Court denied the Plaintiffs' motion to reconsider the dismissal, Elec. Order, ECF No. 67, and subsequently denied without prejudice the Plaintiffs' motion to certify a class, Elec. Clerk's Notes, ECF No. 70. Two years of discovery ensued, followed by the virtually inevitable cross-motions for summary judgment. Def.'s Mot. Summ. J., ECF No. 89; Pls.' Mot. Summ. J., ECF No. 94. This Court denied summary judgment on all claims due to genuine disputes of material fact. Elec. Clerk's Notes, ECF No. 120. In December 2014, the Court ruled that the remaining eight Plaintiffs had no viable disparate impact liability claim arising from their taking the 2005 lieutenant promotional exam (the “2005 exam”) due to their failure to exhaust administrative remedies. Elec. Order, ECF No. 150. Although no longer formally the subject of this litigation, the Court did consider evidence regarding the 2005 exam for background and context in evaluating the 2008 exam.

At the pre-trial conference, the Court bifurcated the case into separate liability and damages phases. Elec. Clerk's Notes, ECF No. 98. The liability phase was tried before the Court between December 15, 2014 and January 7, 2015. See 12/15/14 Tr. 3:3-4, ECF No. 161; 01/07/15 Tr. 3:9-11, ECF No. 160. The following witnesses testified for the Plaintiffs: Dr. Joel Wiesen, PhD., industrial organizational psychologist (expert witness), 12/15/14 Tr. 3:6-12, Department Sergeant and Plaintiff Bruce Smith (fact witness), 12/17/14 Tr. 3:11-13, ECF No. 163, former Department Commissioner Edward Davis (fact witness), 01/05/15 Tr. 3:9-11, ECF No. 158, and Leatta M. Hough, PhD, industrial organizational psychologist (expert witness), 01/06/15 Tr. 3:5-7, ECF No. 159. The following witnesses testified for the City: Dr. Jacinto Silva, PhD, industrial organizational psychologist (expert witness), 12/17/14 Tr. 3:15-17, Dr. Michael Campion, PhD, industrial organizational psychologist (expert witness), 12/19/14 Tr. 3:5-7, ECF No. 166, Department Chief of the Bureau of Administration and Finance Edward P. Callahan (fact witness), 01/06/15 Tr. 3:9-11, and Department Commissioner William E. Evans (fact witness), 01/07/15 Tr. 3:5-7.

III. LEGAL CONTEXT

A. Title VII

It is the goal of Title VII “that the workplace be an environment free of discrimination, where race is not a barrier to opportunity.” Ricci v. DeStefano , 557 U.S. 557, 580, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009). The statute is designed to “ ‘promote hiring on the basis of job qualifications, rather than on the basis of race or color.’ ” Id. at 582, 129 S.Ct. 2658 (quoting Griggs v. Duke Power Co. , 401 U.S. 424, 434, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971) ).

Title VII, codified at 42 U.S.C. § 2000e, provides two theories of liability for discrimination in the employment context: disparate treatment and disparate impact. Ricci , 557 U.S. at 577–78, 129 S.Ct. 2658. A disparate treatment claim accuses an employer of intentionally basing employment decisions on an improper classification, such as race. See id. at 577, 129 S.Ct. 2658. A disparate impact claim, by contrast, challenges an employment decision that is facially neutral, but which falls more harshly on those in a protected class. See id. at 577–78, 129 S.Ct. 2658.

This is a disparate impact case. Second Am. Compl., Compensatory, Injunctive & Declaratory Relief Requested (the “Complaint”) ¶ 1, ECF No. 14. Section 2000e-2(k)(1)(A) outlines the burden of proof in a disparate impact case:

An unlawful employment practice based on disparate impact is established under this subchapter only if—

(i) a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity; or

(ii) the complaining party makes the demonstration described in subparagraph (C) with respect to an alternative employment practice and the respondent refuses to adopt such alternative employment practice.

42 U.S.C. § 2000e-2(k)(1)(A).

Under First Circuit case law, the plaintiff bears the burden of establishing a prima facie case of discrimination which consists of identification of an employment practice (in this case, the 2008 exam and promotions flowing therefrom),⁴ disparate impact, and causation. Bradley v. City of Lynn , 443 F.Supp.2d 145, 156 (D.Mass.2006) (Saris, J.) (quoting EEOC v. Steamship Clerks Union, Local 1066, 48 F.3d 594, 601–02 (1st Cir.1995) ).

If the Plaintiff meets this burden, the employer may either debunk the Plaintiff's prima facie case, or alternatively, may demonstrate that the challenged practice is “job-related and consistent with business necessity.” Bradley , 443 F.Supp.2d at 157 ; see also Ricci , 557 U.S. at 578, 129 S.Ct. 2658. If the employer demonstrates the latter, the ball bounces back into the plaintiff's court to demonstrate that “some other practice, without a similarly undesirable side effect, was available and would have served the defendant's legitimate interest equally well.” Bradley , 443 F.Supp.2d at 157.

The law of disparate impact has become a powerful tool for ensuring equal opportunity. It is both balanced and nuanced.

Each step in its three-part doctrine serves a valuable function. Consider the following.

All testing, hiring, and promotion schemes are necessarily discriminatory. These programs exist because there are more applicants than there are jobs. Under the first prong, the Plaintiffs must make a significant showing of actual disparate impact upon an identified protected minority. This is as it should be: no one wants federal courts acting as super personnel agencies.

If the plaintiff can, however, make this showing, then under the second prong, the employer gets a chance to demonstrate that the test in question is both job-related and consistent with business necessity. Again, this step is sensible: courts ought not defer excessively to employers, but neither should they ignore the realities of particular jobs. The current debate over the exhaustive testing to determine the capabilities of women to engage in military ground combat comes immediately to mind as exemplifying the difficult issues encountered in prong two.

Even if the employer succeeds, however, the case is not over. Under the third prong, the plaintiff gets one more shot. If the plaintiff can demonstrate the availability of a testing program equally determinative of job performance, yet resulting in less disparate impact, the Court should fashion a remedy to secure the greatest degree of equal opportunity. In other words, to produce more equality of opportunity, Title VII empowers courts to impose on employers an equally effective means of evaluating applicants.

B. The Commonwealth's Statutory and Administrative Framework

Under Massachusetts law, police sergeants seeking to be promoted to lieutenant are subject to the state civil service statutory promotion regime. See ...