463 Mass. 696 (2012)
The plaintiffs, African-American and
Hispanic police officers employed by municipalities throughout the
Commonwealth, brought suit in the Superior Court against the Commonwealth and
the division of human resources. The Superior Court granted the defendants’
motion to dismiss on the grounds that the Commonwealth had not waived its
sovereign immunity from suit and because the plaintiffs had failed to state any
claim on which relief could be granted.
The Supreme Judicial Court granted the plaintiffs’ application for
direct appellate review.
The
named plaintiffs filed the present suit on behalf of themselves and as representatives
of a class of similarly situated individuals, defined as “all Black and
Hispanic police officers within the Commonwealth of Massachusetts who are
employed in cities and towns covered by the State civil service law, G.L. c.
31m and who have taken the 2005, 2006, 2007, and 2008 police sergeant
promotional examination administered by the division of human resources but
have not been reached for promotion.”
The division of human resources
creates, designs, and administers examinations to candidates for promotion to
police sergeant. The examinations are comprised of one hundred multiple choice
questions. A candidate must score at
least seventy points to achieve a passing score. Over the last twenty years,
the examinations have been shown “to have a significant adverse impact upon
Black and Hispanic test takers while not having been shown to be valid
predictors of job performance for a police sergeant.” Municipalities that use
the examination select candidates for promotion from those at the top of a list
prepared by the division on which passing candidates are ranked by the scores
they achieved on the examination.
A majority of the plaintiffs passed
the examination but did not receive high enough scores to be considered for
promotion. The plaintiffs allege that as a result of the use of the division’s
examination, African-American and Hispanic police officers have been ranked
significantly lower than their nonminority counterparts although they are
equally qualified. There is also a
significant disparity in between the number of African-American and Hispanic
police sergeants and “their corresponding numbers in entry-level police officer
ranks.”
The plaintiffs allege that the
division engaged in discriminatory promotion practices in violation of G. L. c.
151B, § 4(1), (4A), and (5). They also
allege that the division violated G. L. c. 93, § 102.
Issue # 1: Whether or not
the Commonwealth has waived sovereign immunity under G. L. c. 151B. Yes. The
Legislature has expressly waived sovereign immunity of the Commonwealth by
including them in statutory definitions of persons and employers subject to G.
L. c. 151B. Here the Commonwealth consented to suit under § 4(4A) and (5) by
including Commonwealth and its instrumentalities in the statutory definition of
“person,” and under § 4(1) by including Commonwealth and its instrumentalities
in the statutory definition of “employer.”
Issue # 2: Whether or not
the plaintiffs have stated claims for which relief can be granted under (i) §
4(1), (ii) § 4(4A), and (iii) § 4(5).
No.
The plaintiffs have not alleged sufficient facts that show that the division
has exercised direct control over access to employment opportunities that would
establish an indirect employment relationship as shown in Sibley and AMAE. The §
4(1) interference claim was properly dismissed by the Superior Court.
Yes.
The plaintiffs alleged that the division interfered with the enjoyment of their
right, pursuant to G. L. c. 151B, to be free from discrimination in the terms,
conditions, and privileges of employment. The plaintiffs have alleged
sufficient facts, where reasonable inferences drawn from, which would establish
that the use of the division’s examination will have a disparate impact on the
employment opportunities of African-American and Hispanic police officers.
No. An aiding and abetting claim under § 4(5) is
entirely derivative of the discrimination claim. The plaintiffs failed to
allege that any of the municipalities in the suit committed a distinct,
underlying act of employment discrimination from which the aiding and abetting
claim may be said to be derivative. The plaintiffs have failed to meet the first
element of aiding and abetting claim under § 4(5), and the claim was properly
dismissed.
Issue # 3: Whether or not
the plaintiffs can pursue a claim under G. L. c. 93, § 102 (MERA).
No.
Due to the remedy under G. L. c. 151B, § 4(4A), the plaintiffs cannot proceed
under MERA because remedies under G. L. c. 151B are “exclusive, preempting the
joining of parallel MERA claims.”
The
judgment is affirmed as to the dismissal of plaintiffs’ claims under G. L. c.
151B, §§ 4(1), 4(5) and G. L. c. 93, § 102. The dismissal of plaintiffs’ G. L.
c. 151B, § 4(4A) is vacated and remanded for further proceedings.
