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Smith v. City of Boston

United States District Court, D. Massachusetts

July 26, 2017

CITY OF BOSTON, Defendant.




         To understand why the Court here revisits and reconsiders rulings it made earlier in Smith v. City of Boston, 144 F.Supp.3d 177 (D. Mass. 2015), it is necessary to understand the timing of my decision in Smith and how that decision may or may not conform to two other related yet distinct decisions -- Judge O'Toole's thorough opinion in Lopez v. City of Lawrence (Lopez I), No. 07-11693-GAO, 2014 U.S. Dist. LEXIS 124139 (D. Mass. Sept. 5, 2014) (O'Toole, J.), and its affirmance by the First Circuit, Lopez v. City of Lawrence (Lopez II), 823 F.3d 102 (1st Cir. 2016), cert. denied, 137 S.Ct. 1088 (2017). The latter decision, of course, controls this Court's analysis.

         All three decisions seek accurately to apply the law of disparate impact. At the most superficial level, the jurisprudence of disparate impact seeks fairly to ensure that employment decisions are made on genuine merit.

         Recognizing that all employment tests are, by their very nature, discriminatory (after all, that's the whole purpose of testing -- to choose the few from the many), the plaintiffs must (first prong) prove that the test reveals a significantly disparate impact upon a lawfully protected minority --significantly disparate impact because we don't want federal judges messing around with every employment test.

         If the plaintiffs prove the first prong, the employer has the chance (second prong) to prove that the test vindicates itself through the business necessity of choosing on the basis of merit the best persons for the job.

         Even if the employer prevails on the second prong, the plaintiffs get one last chance (third prong) -- to prove that there existed a test equal or better at identifying the best person for the job thus satisfying the employer's business necessity, which test was available to the employer and which test had a less disparate impact.

         This is an elegant and nuanced matrix. The devil, of course, is in the details.

         Lopez I, the first of these three related cases, commenced on September 11, 2007, with the filing of a complaint by a number of black and Hispanic patrolmen from various municipalities (including the City of Boston (“Boston”)) challenging the civil service examination procedures for promotion to the rank of sergeant (“2008 sergeants' exam”). Drawn to Judge George O'Toole, this case came on for an eighteen-day bench trial commencing on July 12, 2010. When the trial concluded, Judge O'Toole took the case under advisement.

         In February 2012, ten black police sergeants (the “Plaintiffs”) in Boston commenced a substantially similar case before Judge Joseph Tauro. This case, the Smith case, challenged the police promotional exam from sergeant to lieutenant. When Judge Tauro took senior status, the case was transferred to this session on December 26, 2013.

         In the meantime with Lopez I under advisement and Smith pending, Boston substantially revamped its police promotional testing procedures, adopting -- at significant expense -- many of the improvements for which both the Lopez I and Smith plaintiffs were contending.

         On September 5, 2014, Judge O'Toole issued his full written opinion in Lopez I, finding that the 2008 sergeants' exam imposed a significantly disparate impact on minority applicants, 2014 U.S. Dist. LEXIS 124139, at *48, and that the written portion of that exam could not alone support its validity “because it could not measure some skills and abilities (as distinguished from knowledge) essential to the position, such as leadership, decision making, interpersonal relations, and the like, ” id. at *60-61. Judge O'Toole went on to find that the Education and Experience portion of the examination saved it, albeit just barely. Id. The plaintiffs promptly appealed.

         In Smith, the Plaintiffs alleged that the multiple-choice examination used by the Boston Police Department in 2008 to select and rank candidates for promotion from the rank of sergeant to lieutenant (“2008 lieutenants' exam”) had a disparate impact on racial minorities and was invalid under Title VII of the Civil Rights Act of 1964. Smith, 144 F.Supp.3d at 181. Boston responded that the exam did not have a disparate impact and, even if it did, was sufficiently job-related to be held valid. Id. at 180.

         On December 15, 2014, at the outset of what proved to be a ten-day bench trial, the parties commendably moved into evidence the full trial record and exhibits from Lopez I. Then, for ten days, the Court heard lay and expert witnesses proffered by both sides, some of whom had not testified in Lopez I. See id. at 181. On November 26, 2015, this Court issued its opinion concluding that the 2008 lieutenants' exam had a racially disparate impact and was insufficiently job-related to survive the Plaintiffs' challenge. Id. at 180-81. The Court thus imposed liability on Boston. Id. at 181.

         Before engaging in extensive hearings concerning remedy, all parties sought time to explore settlement. After all, the challenged 2008 lieutenants' exam had long been out of use and the real nub of contention appeared to be the attorneys' fees due the Plaintiffs' counsel as prevailing parties.

         Then, in a comprehensive opinion issued on May 18, 2016, the First Circuit affirmed Lopez I. Lopez II, 823 F.3d 102. As that court itself summarized: “[f]inding that the district court applied the correct rules of law and that its factual findings were not clearly erroneous, we affirm.” Id. at 107.

         Naturally, I read Lopez II with great interest. I was gratified to see that the First Circuit had unanimously concluded, as did Judge O'Toole -- and as had I with respect to the 2008 lieutenants' exam -- that the 2008 sergeants' exam had a significantly disparate impact on racial minorities. Id. at 111. On the sole issue where I had parted company with Judge O'Toole -- finding on different and additional evidence that business necessity could not justify use of the 2008 lieutenants' examination for the rank ordering of candidates for promotion -- the Court of Appeals had split 2-1 in reviewing Judge O'Toole's findings as to the 2008 sergeants' exam. Id. at 122 (Torruella, J., concurring and dissenting). Most important, I detected no shift in the governing law in Lopez II from that I had applied to the facts I found in Smith. Nor would any shift be expected. Absent intervening Supreme Court precedent or legislative change, it is the practice in the First Circuit faithfully to adhere to the decisions of earlier panels of that court. See, e.g., Peralta v. Holder, 567 F.3d 31, 35 (1st Cir. 2009) (“‘We have held, time and again, that in a multi-panel circuit, prior panel decisions are binding upon newly constituted panels in the absence of supervening authority sufficient to warrant disregard of established precedent.'” (quoting Muskat v. United States, 554 F.3d 183, 189 (1st Cir. 2009))).

         Whatever the potential legal effect of Lopez II on Smith, its practical effect was immediate. Settlement negotiations ceased. Now the parties sought an interlocutory appeal to settle once and for all the propriety of this Court's ruling on prong 2. This Court readily acceded to their wishes.

         On October 11, 2016, the Court of Appeals gently but firmly rebuffed this gambit:

The district court issued its findings on liability in this case without the benefit of our subsequently-issued opinion in the case of Lopez v. City of Lawrence, 823 F.3d 102 (1st Cir. 2016). Since then, the district court has not yet purported to apply Lopez to the facts of this case.
For example, it has not stated whether and how its assessment of validity has taken into consideration the guidance we provided. Id. at 116-17. We therefore deny the petition without prejudice to renewal, if otherwise appropriate, after the district court has itself applied Lopez to this case.

         J. United States Ct. Appeals 1, ECF No. 229.

         In one sense, this order is both generous and courteous. It gives me first crack at applying Lopez II to my earlier legal analysis in Smith and making such analytic adjustments as may be necessary. Its tenor, however, suggests I may have missed something. Boston certainly thinks so.

         In light of the First Circuit's order, this Court promptly held a status conference with the parties, Electronic Clerk's Notes, ECF No. 232, who subsequently briefed their positions on the effect of Lopez II on this Court's previous ruling in Smith, Pls.' Br. Ct. Appeal J., ECF No. 235; Pls.' Reply Br. Regarding Ct. Appeals J., ECF No 241; City of Boston's Br. Affect Lopez Ct.'s Liability Decision (“Def.'s Br.”), ECF No. 236; City of Boston's Reply Br. Lopez's Affect Ct.'s Liability Decision (“Def.'s Reply”), ECF No. 242. Boston argues that Lopez II requires this Court to change its previous ruling by: (1) applying different legal standards to its prong 2 analysis, thus necessitating a different outcome, and (2) reaching prong 3 of the disparate impact inquiry.


         In these circumstances, this Court first conducts a brief, albeit rigorous and reflective review of what it has already done. In Smith, this Court examined the Plaintiffs' challenges to Boston's use of the 2008 lieutenants' exam to select and rank candidates for promotion from the rank of sergeant to lieutenant. 144 F.Supp.3d at 180. The Court imposed liability on Boston, after concluding that the 2008 lieutenants' exam had a racially disparate impact and was insufficiently job-related to withstand the Court's disparate impact inquiry. Id. at 181.

         In examining the evidence, this Court set forth the legal framework:

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 [lieutenants'] exam and ...

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