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Lopez v. City of Lawrence

United States Court of Appeals, First Circuit

May 18, 2016


         As Amended May 27, 2016.

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         Harold L. Lichten and Stephen S. Churchill, with whom Benjamin Weber, Lichten & Liss-Riordan, P.C., and Fair Work, P.C., were on brief, for appellants.

         Bonnie I. Robin-Vergeer, Attorney, Department of Justice, Civil Rights Division, Appellate Section, with whom Sharon M. McGowan, Attorney, Civil Rights Division, Vanita Gupta, Acting Assistant Attorney General, P. David López, General Counsel, and Carolyn L. Wheeler, Acting Associate General Counsel, Appellate Services, Equal Employment Opportunity Commission, were on brief for amicus the United States of America.

         Kay H. Hodge, with whom John M. Simon, Geoffrey R. Bok, Stoneman, Chandler & Miller LLP, Susan M. Weise, Attorney, City of Boston Law Department, and Lisa Skehill Maki, Attorney, City of Boston Law Department, were on brief, for appellee City of Boston, Massachusetts.

         James F. Kavanaugh, Jr., with whom Christopher K. Sweeney, and Conn. Kavanaugh Rosenthal Peisch & Ford, LLP, were on brief, for appellees Massachusetts Bay Transportation Authority, Daniel Grabauskas, and the Board of Trustees of the Massachusetts Bay Transportation Authority.

         Rachel M. Brown, Assistant City Solicitor, City of Lowell Law Department, with whom Christine Patricia O'Connor, City Solicitor, City of Lowell Law Department, was on brief for appellees City of Lowell, Massachusetts, and Appointing Authority for the City of Lowell, Massachusetts.

         Tim D. Norris, with whom Joshua R. Coleman, and Collins, Loughran & Peloquin, P.C., were on brief, for appellees City of Worcester, Massachusetts, Michael O'Brien, City Manager of Worcester, and Konstantina B. Lukes, Mayor of the City of Worcester.

         Anthony I. Wilson, Associate City Solicitor, City of Springfield Law Department, with whom Edward M. Pikula, City Solicitor, and John T. Liebel, Associate City Solicitor, were on brief, for appellees City of Springfield, Massachusetts, and Mayor Domenic J. Sarno, Jr.

         Raquel D. Ruano, Attorney, Office of the City Attorney, City of Lawrence, Massachusetts, and Charles D. Boddy, Jr., Attorney, Office of the City Attorney, City of Lawrence, Massachusetts, on brief for appellees City of Lawrence, Massachusetts, and Mayor John Michael Sullivan.

         Kerry Regan Jenness, Attorney, Office of the City Solicitor, City of Methuen, on brief for appellees City of Methuen, Massachusetts, and Mayor William M. Manzi, III.

         Michael L. Foreman, Civil Rights Appellate Clinic, Dickinson School of Law, Pennsylvania State University, on amicus brief of National Urban League and the National Association for the Advancement of Colored People.

         Gary Klein, Kevin Costello, Corinne Reed, Klein Kavanagh Costello, LLP, Mark S. Brodin, Professor, Boston College Law School, and Ray McClain, Director, Employment Discrimination Project, Lawyers' Committee for Civil Rights Under Law, on amicus brief of Massachusetts Association of Minority Law Enforcement Officers, New England Area Conference of the National Association for the Advancement of Colored People, Urban League of Eastern Massachusetts, and Professor Mark S. Brodin.

         Christopher L. Brown, Christopher J. Petrini, and Petrini & Associates, P.C., on amicus brief of International Municipal Lawyers Association, Massachusetts Municipal Lawyers Association, Massachusetts Municipal Association, National Public Employer Labor Relations Association, Massachusetts Chiefs of Police Association, Inc., and Fire Chiefs Association of Massachusetts, Inc.

         Before Torruella, Lynch, and Kayatta, Circuit Judges.


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          KAYATTA, Circuit Judge.

          In selecting police officers for promotion to the position of sergeant in 2005 and 2008, the City of Boston and several other Massachusetts communities and state employers adapted a test developed by a Massachusetts state agency (" HRD" )[1] charged under state law with creating a selection tool that " fairly test[s] the knowledge, skills and abilities which can be practically and reliably measured and which are actually required" by the job in question. Mass. Gen. Laws ch. 31, § 16. There is no claim in this case that defendants intentionally selected the test in order to disadvantage any group of applicants. To the contrary, the evidence is that the test was the product of a long-running effort to eliminate the use of race or other improper considerations in public employment decisions.

         The percentage of Black and Hispanic applicants selected for promotion using the results of this test nevertheless fell significantly below the percentage of Caucasian applicants selected. Some of those Black and Hispanic applicants who were not selected for promotion sued, claiming that the use of the test resulted in an unjustified " disparate impact" in violation of Title VII notwithstanding the absence of any intent to discriminate on the basis of race. 42 U.S.C. § 2000e-2(k)(1)(A)(i). After an eighteen-day bench trial, the district court determined, among other things, that the use of the test did have a disparate impact on promotions in the City of Boston, but that the test was a valid selection tool that helped the City select sergeants based on merit. Lopez v. City of Lawrence, No. 07-11693-GAO, at *37, *60-62 (D. Mass. Sept. 5, 2014). The court further found that the plaintiffs failed to prove that there was an alternative selection tool that was available, that was as (or more) valid than the test used, and that would have resulted in the promotion of a higher percentage of Black and Hispanic officers. Id. at *60-79. Finding that the district court applied the correct rules of law and that its factual findings were not clearly erroneous, we affirm.

         I. Background

         The plaintiffs in this suit (the " Officers" ) sought promotion in the police departments operated by the Massachusetts municipalities or state agencies sued in this case. Id. at *7-8. All parties agree that affirmance of the judgment in favor of Boston would result in affirmance of the judgment in favor of the other defendants as well, so we focus our discussion for simplicity's sake on the evidence concerning Boston. Because this is an appeal of fact-finding and application of law to fact following a trial on the merits, we describe

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the facts in a manner that assumes conflicting evidence was resolved in favor of the prevailing party unless there is particular reason to do otherwise. Wainwright Bank & Tr. Co. v. Boulos, 89 F.3d 17, 19 (1st Cir. 1996) (" We summarize the facts in the light most favorable to the verdict-winner [ ], consistent with record support." ).

         A. Development of the Exams Over Time

         In 1971, Congress noted that the United States Commission on Civil Rights (" USCCR" ) found racial discrimination in municipal employment " more pervasive than in the private sector." H.R. Rep. No. 92-238, at 17 (1971). According to the USCCR, nepotism and political patronage helped perpetuate preexisting racial hierarchies. U.S. Comm'n on Civil Rights, For All the People, By All the People: A Report on Equal Opportunity in State and Local Government Employment, 63-65, 119 (1969), reprinted in 118 Cong. Rec. 1817 (1972). Police and fire departments served as particularly extreme examples of this practice. See, e.g., Wesley MacNeil Oliver, The Neglected History of Criminal Procedure, 1850-1940, 62 Rutgers L.Rev. 447, 473 (2010) (" Officers who delivered payments to their superiors were practically assured of retention and even promotion, regardless of their transgressions." ); Nirej S. Sekhon, Redistributive Policing, 101 J. Crim. L. & Criminology 1171, 1191 (2011) (" Police departments were prime sources of patronage jobs." ).

         Boston's police department was no exception: As far back as the nineteenth century, a subjective hiring scheme that hinged on an applicant's perceived political influence and the hiring officer's subjective familiarity with the candidate (or the candidate's last name) was seen as the primary culprit behind a corrupt, inept, and racially exclusive police force. See, e.g., George H. McCaffrey, Boston Police Department, 2 J. Am. Inst. Crim. L. & Criminology 672, 672 (1912) (" This system worked very unsatisfactorily, however, because places on the police force were invariably bestowed as a reward for partisan activity." ).

         At both the state and local levels, Massachusetts officials eventually gravitated toward competitive exams as a tool to accomplish an important public policy of moving away from nepotism, patronage, and racism in the hiring and promoting of police. Boston Chapter, N.A.A.C.P., Inc. v. Beecher, 504 F.2d 1017, 1022 (1st Cir. 1974) (" [C]ivil service tests were instituted to replace the evils of a subjective hiring process . . . ." ); see generally League of Women Voters of Mass., The Merit System in Massachusetts: A Study of Public Personnel Administration in the Commonwealth 3-5 (1961). At the statewide level, this movement resulted in legislation and regulations aimed at ensuring that employees in civil service positions are " recruit[ed], select[ed] and advanc[ed] . . . on the basis of their relative ability, knowledge and skills" and " without regard to political affiliation, race, color, age, national origin, sex, marital status, handicap, or religion." Mass. Gen. Laws ch. 31, § 1.

         B. The 2005 and 2008 Exams

         Born of these purposes and shaped by decades of Title VII litigation,[2] the examinations at issue in this case allowed no room for the subjective grading of applications. The total score of a test-taker who sat for the promotional examination in

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2005 or 2008 was determined bye two components: an 80-question written examination scored on a 100-point scale and an " education and experience" (" E& E" ) rating, also scored on a 100-point scale. The written examination counted for 80% of an applicant's final score and the E& E rating comprised the remaining 20%. Applicants needed an overall score of seventy to be considered for promotion. On top of the raw score from these two components, Massachusetts law affords special consideration for certain military veterans, id. § 26, and individuals who have long records of service with the state, id. § 59.

         The subject matter tested on the 2005 and 2008 examinations can be traced back to a 1991 " validation study" or " job analysis report" performed by the state agency responsible for compiling the exam.[3] See 29 C.F.R. § 1607.14 (technical requirements for a content validity study under the Uniform Guidelines on Employee Selection Procedures); see also Watson v. Fort Worth Bank & Tr., 487 U.S. 977, 991, 108 S.Ct. 2777, 101 L.Ed.2d 827 (1988) (opinion of O'Connor, J.) ( " Standardized tests and criteria . . . can often be justified through formal 'validation studies,' which seek to determine whether discrete selection criteria predict actual on-the-job performance." ).

         That 1991 report was prepared by the Massachusetts Department of Personnel Administration (" DPA" ), the predecessor to HRD. In preparing the report, DPA surveyed police officers in thirty-four jurisdictions nationwide, issuing a questionnaire that sought to ascertain the kinds of " knowledge[], skills, abilities and personnel characteristics" that police officers across the country deemed critical to the performance of a police sergeant's responsibilities. The report's authors distilled the initial results from this survey and their own knowledge regarding professional best practices into a list of critical police supervisory traits. They then distributed this list in a second survey to high-ranking police officers in Massachusetts, who were asked to rank these traits according to how important they felt each was to a Massachusetts police sergeant's performance of her duties. DPA further refined the ranking of key skills and traits through focused small-group discussions with police sergeants and conducted a " testability analysis" of which skills could likely be measured through the written examination or the E& E component. In 2000, HRD engaged outside consultants to refresh the findings of the 1991 examination through a process similar to, though less thorough than, DPA's approach in 1991.

         The written question and answer component of the examination consisted of multiple choice questions that covered many topic areas, including the rules governing custodial interrogation, juvenile issues, community policing, and firearm issues, to name a few.[4] The text of individual questions was often closely drawn from the text of materials identified in a reading list provided by the Boston Police Department

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(" BPD" ) to test-takers in advance of the exams.

         For example, one question on the 2008 promotional exam asked applicants to accurately complete the following statement:

According to [a criminal investigations textbook on the reading list], a warrantless search and seizure is acceptable:
A. after stopping a vehicle for a traffic violation and writing a citation.
B. after obtaining the consent of the person, regardless of whether obtained voluntarily or nonvoluntarily.
C. when possible loss or destruction of evidence exists.
D. when a quick search of the trunk of a motor vehicle is desired.

         In addition to completing the question and answer component of the examination, applicants listed on the E& E rating sheet their relevant work experience, their degrees and certifications in certain areas, their teaching experience, and any licenses they held.[5] Points were assigned based on the listed education and experience. For example, applicants could receive up to fifteen points in recognition of their educational attainment, with an associate's degree providing up to three points and a doctorate providing up to twelve.

         After collecting and scoring the exams, HRD provided the municipalities with a list of passing test-takers eligible for promotion, ranked in order of their test scores. Mass. Gen. Laws ch. 31, § 25. Each of the municipal defendants in this case selected ...

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