Smith v. City of Bos., CIVIL ACTION NO. 12-10291-WGY
| Decision Date | 13 May 2020 |
| Docket Number | CIVIL ACTION NO. 12-10291-WGY |
| Citation | 460 F.Supp.3d 51 |
| Parties | Bruce SMITH, Paul Joseph, John M. Johnson, Robert Tinker, Martin Joseph, Kim Gaddy, Brian Keith Latson, Leighton Facey, Kenneth Sousa, William Woodley, Marwan Moss, and Lateisha Adams, Plaintiffs, v. CITY OF BOSTON, Defendant. |
| Court | U.S. District Court — District of Massachusetts |
Benjamin Weber, Harold L. Lichten, Lichten & Liss-Riordan, P.C., Stephen S. Churchill, Fair Work, P.C., Sara E. Smolik, Boston, MA, for Plaintiffs.
Amy E. Condon, Nicole I. Taub, Boston Police Department Office of the Legal Advisor, John M. Simon, Kay H. Hodge, Geoffrey R. Bok, Stoneman, Chandler & Miller, Boston, MA, for Defendant.
This litigation has spanned years and prompted the Court to issue two published opinions on the merits ruling in favor of the police-officer plaintiffs ("the Officers") against the City of Boston ("Boston") on their Title VII disparate impact claim arising from the 2008 lieutenants' promotional exam. Smith v. City of Boston (Smith I ), 144 F. Supp. 3d 177 (D. Mass. 2015) ; Smith v. City of Boston (Smith II ), 267 F. Supp. 3d 325 (D. Mass. 2017). Having determined that the test had an unlawful disparate impact, the Court must now decide the remedy. The issues in dispute are whether there is a binding presumption that entitles the plaintiffs to back pay and, if so, whether Boston has successfully rebutted that presumption by introducing evidence of scores from the new exam given in 2014. The parties also debate the start and end dates of any back pay award.
For the reasons that follow, the Court rules that there is a binding presumption of back pay (notwithstanding the contrary dictum in a footnote in a recent opinion of the First Circuit in a related case) and that Boston has not rebutted this presumption. Per the stipulation of the parties, back pay is limited to each plaintiff's "loss of chance" of being promoted as calculated by an agreed-upon formula. The Court adopts the Officers' proposed start date and awards the Officers back pay in keeping with the stipulated calculation. The Court also adopts the Officers' end dates, except for those plaintiffs who failed to mitigate damages by taking the 2014 exam and whose back pay therefore terminates on Boston's proposed end date.
After the Court ruled in favor of the Officers in Smith I in 2015, the First Circuit rejected a similar claim from a group of officers challenging Boston's 2008 sergeants' promotional exam. Lopez v. City of Lawrence, 823 F.3d 102 (1st Cir. 2016), cert. denied, ––– U.S. ––––, 137 S. Ct. 1088, 197 L.Ed.2d 181 (2017). When the parties sought interlocutory appeal of Smith I, the First Circuit demurred on October 11, 2016, with the suggestion that this Court take another look with the benefit of the Lopez case. Smith II, 267 F. Supp. 3d at 328 (quoting ECF No. 229). Finding that Lopez addressed a somewhat different set of facts and did not change the relevant law, this Court reaffirmed its decision on July 26, 2017. Id. at 337. The parties again sought interlocutory review and, on April 17, 2019, the First Circuit again denied it, this time without comment. ECF No. 250.
From October 28-30, 2019, the Court held a three-day bench trial on damages. ECF Nos. 292-294. The Officers declined to seek any remedy other than back pay (potentially along with attorneys' fees and costs once a remedy is decided). Trial Tr. Day 1 at 7:8-25, ECF No. 292; Pls.' Br. Remedy ( ) 7, ECF No. 303. Furthermore, the parties stipulated to a "loss of a chance" calculation of back pay, which fixes the lost chance ratio at 36.26% of the total value of each Officer's back pay (the promotion rate of the 2008 exam). Joint Trial Stipulations, Trial Ex. 86; Joint Suppl. Trial Exs., Ex. A, Pls.' Calculations, ECF No. 301-1; id., Ex. B, Def.'s Calculations, ECF No. 301-2 (jointly, "Stipulated Calculations"); Def. City Boston's Damages Trial Br. ("Def.'s Br.") 24-26, ECF No. 302; Pls.' Br. 5-7.
This opinion presumes familiarity with the underlying facts of liability discussed in the Court's two previous published opinions in this case, Smith I and Smith II. The crucial facts to recall from those opinions are that Boston's 2008 lieutenants' exam was deemed to have a disparate impact on minority candidates and to lack job-relatedness, in violation of Title VII and its Massachusetts analogue, Chapter 151B. Smith I, 144 F. Supp. 3d at 212. This Court did not reach the question whether any alternative selection tool might have had less discriminatory impact. Id. at 211. With that in mind, the Court turns to the factual questions aired at the damages trial.
The focus of the damages trial was the import, if any, of Boston's next iteration of the lieutenants' exam, administered in 2014. There is no doubt that the 2014 exam was qualitatively far superior to the 2008 exam. It included not only a written technical knowledge test (45% of the grade), but also an "in-basket" exercise (weighted at 25%) and two oral board exercises (the final 30% together). Trial Tr. Day 1 at 78:2-79:8. The 2014 exam was, in brief, a test significantly changed for the better, "in part due to a desire to increase diversity." Smith I, 144 F. Supp. 3d at 190. Yet, to the "surpris[e]" of both experts, the 2014 exam turned out to have had a greater adverse impact on black candidates than did the 2008 exam. Trial Tr. Day 1 at 100:15-23; Trial Tr. Day 2 at 130:4-5, ECF No. 293. Whereas five black candidates were promoted as a result of the 2008 exam, the 2014 exam landed only one black candidate in the top forty spots. Def.'s Br. 23 (citing Trial Ex. 93 at 15-18).
Of the plaintiffs here, only four -- Paul Joseph, Martin Joseph, Bruce Smith, and Kenneth Sousa -- sat for the 2014 exam. Pls.' Br. 18-19; Aff. Edward P. Callahan –- Trial Ex. 85, Ex. 4, Boston PD 2014: Lieutenant Final Score Report ("2014 Results"), ECF No. 177. Sergeant Paul Joseph received a score of 87 on the 2008 test and thought he would be promoted from that list. Trial Tr. Day 1 at 119:15-121:9. He took the 2014 test anyway because, in his words, he "just wanted to see what the test was going to be about" -- but he "[a]bsolutely [did] not" study for it. Id. at 122:3-6. He scored a 71, next to last in the class. 2014 Results 3. The other three officers in fact did marginally better on the 2014 exam than they had done in 2008, though still too low to be in line for a realistic promotion. Sergeant Martin Joseph got an 80 (up from 77.49 in 2008), Sergeant Bruce Smith a 78 (compared with a 77.75 in 2008), and Sergeant Kenneth Sousa an 83 (78.41 in 2008). Def.'s Br. 22 ns. 36-39.
The Officers' argument for back pay stems from the " Albemarle presumption," derived from the Supreme Court's holding "that, given a finding of unlawful discrimination, backpay should be denied only for reasons which, if applied generally, would not frustrate the central statutory purposes of eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination." Albemarle Paper Co. v. Moody, 422 U.S. 405, 421, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975). Thus, the Officers contend, back pay is presumptively warranted, and Boston has done nothing to rebut that presumption. In response, Boston offers two arguments: (1) that the Albemarle presumption does not really exist, at least according to the First Circuit's recent decision in Lopez; and (2) alternatively, that Boston effectively rebutted the presumption with its evidence from the 2014 exam.
The term "presumption" does not appear in Albemarle itself, except in a footnote's passing reference to analogous case law under the National Labor Relations Act. Id. at 420 n.12 . Nonetheless, the Supreme Court subsequently stated that "[t]he Albemarle presumption in favor of retroactive liability can seldom be overcome, but it does not make meaningless the district courts' duty to determine that such relief is appropriate." City of Los Angeles, Dep't of Water & Power v. Manhart, 435 U.S. 702, 719, 98 S.Ct. 1370, 55 L.Ed.2d 657 (1978) ; see Johnson v. Spencer Press of Maine, Inc., 364 F.3d 368, 382 (1st Cir. 2004) ().
The Supreme Court and First Circuit speak of a "presumption" in favor of back pay, and this word is at the core of the quarrel between Boston and the Officers. What precisely does this "presumption" entail? "No term has been more frequently or variously defined," one learned author bemoaned, to the point that "the whole subject seems an entanglement of definition and explanation, which leaves the mind in a hopeless state of bewilderment." John Jay McKelvey, Handbook of the Law of Evidence § 39, at 93-94 (3d ed. 1924). "Is it possible," another scholar wondered, "that for a century or longer judges, lawyers and jurists have not known what they are talking about when using the word ‘presumption’?" Otis Harrison Fisk, Presumptions in the Law: A Suggestion 1 (1921). One more century of legal rumination behind us, here we are.
Boston contends that the Albemarle presumption is a mirage. See Def.'s Br. 17. Instead of "some ‘substantive rule of law,’ " Boston argues, "the so-called ‘ Albemarle presumption’ boils down to little more than the rather unremarkable proposition that back pay is an available Title VII remedy that should be awarded where appropriate." Id. at 18 (...
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