United States District Court, D. Massachusetts
BRUCE SMITH, PAUL JOSEPH, JOHN M. JOHNSON, ROBERT TINKER, MARTIN JOSEPH, KIM GADDY, BRIAN KEITH LATSON, LEIGHTON FACEY, MARWAN MOSS, and LATEISHA ADAMS, Plaintiffs,
CITY OF BOSTON, Defendant.
MEMORANDUM & ORDER
WILLIAM G. YOUNG DISTRICT JUDGE
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.
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.
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
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.
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.
an elegant and nuanced matrix. The devil, of course, is in
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.
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
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
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
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.
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.
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.
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.
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.
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.
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
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.
United States Ct. Appeals 1, ECF No. 229.
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.
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
THIS COURT'S PREVIOUS RULING
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.
examining the evidence, this Court set forth the legal
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