Caulfield v. City of Boston et al
Filing
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Chief Judge Patti B. Saris: MEMORANDUM and ORDER entered.The motions to dismiss Caulfield's claims for damages areALLOWED (Docket Nos. 14 , 21 ). The motion to dismiss the City as a defendant is ALLOWED (Docket No. 21 ). 5 The motion to dismiss is otherwise DENIED. (Geraldino-Karasek, Clarilde)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
___________________________________
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JOHN CAULFIELD,
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Plaintiff,
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v.
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Civil Action No.
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15-10091-PBS
HUMAN RESOURCES DIVISION OF THE
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COMMONWEALTH OF MASSACHUSETTS,
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PAUL DIETL, in his individual
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Capacity as Director of Human
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Resources Division, BRUCE HOWARD, )
in his individual capacity as
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Director of Operations for Civil
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Service for Human Resources
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Division, CITY OF BOSTON, and
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WILLIAM EVANS, in his official
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Capacity as Boston Police
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Commissioner,
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Defendants.
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___________________________________)
MEMORANDUM AND ORDER
September 4, 2015
Saris, Chief Judge
INTRODUCTION
When Plaintiff John Caulfield was not hired for a position
with the Boston Police Academy, he filed this action pursuant to
42 U.S.C. § 1983, 42 U.S.C. § 2000e et seq. (Title VII), and
M.G.L. c. 151B, § 4, asserting unlawful gender discrimination.
He filed suit against (1) the Human Resources Division (HRD) of
the Commonwealth of Massachusetts; (2) two employees of HRD in
their individual capacities, Paul Dietl and Bruce Howard; (3)
the City of Boston (City); and (4) the Boston Police
1
Commissioner (Boston Police Department or BPD). He alleges that
the BPD’s gender-based hiring policy violates M.G.L. c. 151B, §
4 (Count I), Title VII (Count II), and the Equal Protection
Clause, (Count III). He now seeks damages and injunctive relief
(Count IV) (Docket No. 4). The defendants moved to dismiss
pursuant to Fed. R. Civ. P. 12(b)(1) and (3). (Docket Nos. 14,
21).
After hearing and a review of the record, I ALLOW the
motion to dismiss as to Caulfield’s damages claims against all
defendants on the ground that Caulfield lacks standing to seek
monetary relief. The motion to dismiss is otherwise DENIED.
FACTUAL BACKGROUND
The complaint alleges the following facts. The Human
Resources Division of the Commonwealth of Massachusetts (HRD)
administers civil service examinations for police officers,
creates lists of candidates based on their scores, and issues
hiring certifications to cities and towns from which they can
appoint police officers. When the Boston Police Department (BPD)
wants to hire new police officers, it sends a request to HRD
specifying the number of desired candidates pursuant to M.G.L.
c. 31 and HRD’s Personnel Administrative Rules (PAR). The
Personnel Administrator of HRD then sends a certification to the
BPD containing the names of eligible candidates. Candidates
appear in descending order based on their performance on the
2
civil service examination. Under PAR.02 and PAR.08(4), the BPD
must consider all candidates listed in order of test rank,
although it may bypass a more highly ranked candidate by
providing written justification to the Personnel Administrator.
PAR.08(6) authorizes the issuance of selective certifications
based on certain qualifications, including gender. 1
In February and March 2013, the BPD submitted a request to
HRD for a main certification from which it sought to hire fortyfive officers of either gender. BPD also requested a selective
gender certification from which it sought to hire ten female
officers. Defendant Howard received and approved these requests,
and HRD issued both certifications. Plaintiff John Caulfield,
who sought appointment as a Boston police officer, passed the
civil service examination and appeared on the main
certification. In the end, Caulfield was not hired.
Caulfield alleges that, had HRD not issued a selective
gender certification, BPD would have considered or appointed
1
Under M.G.L. c. 31, § 21,
The [personnel] administrator [of the human resources
division] may limit eligibility for any examination for
an original appointment to either male or female persons
if the appointing authority requests such limitation in
its requisition. . . . [T]he administrator may limit
such eligibility to either male or female persons if the
duties and responsibilities of such position require
special physical or medical standards or require custody
or care of a person of a particular sex.
3
more officers from the 55th rank and would likely have sent him
to the academy. Additionally, he alleges that HRD has a longstanding practice of approving selective gender certifications
regardless of the justification for the request, and that BPD
consistently fails to show a compelling government interest in
hiring female officers. As a result, Caulfield avers, HRD has
granted every BPD certification request since 2010, even though
BPD had enough female officers to meet its stated criteria.
DISCUSSION
I.
Standing
The defendants argue that Caulfield does not have standing
to seek either damages or injunctive relief, and urge dismissal
of the case for lack of subject matter jurisdiction under Fed.
R. Civ. P. 12(b)(1). In addition to submitting the selective and
main certifications, the defendants submitted an affidavit that
contains the following facts relevant to the jurisdictional
issue. 2 Based on his exam score, Caulfield was ranked 55th along
with 137 other candidates. The selective certification list
contained 115 female candidates. All ten female officers hired
from the selective certification were ranked 54th or higher on
the main certification. All of the female candidates that
2
Neither party has thus far sought discovery on facts relating
to standing. Caulfield did not challenge the accuracy of the
selective gender certification and main certification submitted
to the Court.
4
appeared on the selective certification also appeared on the
main certification, ranked in order of their score. Absent the
selective certification, any higher-ranked female would have
been considered for employment in advance of Caulfield. Of the
forty-five officers hired from the main certification, seventeen
(one female and sixteen males) were ranked 55th. No one ranked
lower than 55th was hired.
“A Rule 12(b)(1) motion is sometimes transformed into a
Rule 56 motion where jurisdictional issues cannot be separated
from the merits of the case.” Gonzalez v. United States 284 F.3d
281, 287 (1st Cir. 2002). However, “[t]he court, without
conversion, may consider extrinsic materials and, to the extent
it engages in jurisdictional factfinding, is free to test the
truthfulness of the plaintiff’s allegations.” Dynamic Images
Techs, Inc. v. United States, 221 F.3d 34, 37 (1st Cir. 2000).
Accordingly, “the formality of converting the motion to dismiss
to one for summary judgment need not be observed,” Kolancian v.
Snowden, 532 F. Supp. 2d 260, 262 (D. Mass. 2008), and courts
have the authority to resolve the issue of standing on the basis
of extrinsic evidence. See Valentin v. Hosp. Bella Vista, 254
F.3d 358, 363 (1st Cir. 2001) (where plaintiff raises factual
challenge to subject matter jurisdiction, “the court enjoys
broad authority to order discovery, consider extrinsic evidence,
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and hold evidentiary hearings in order to determine its own
jurisdiction”).
A plaintiff seeking to invoke a federal court’s
jurisdiction must show that he has “suffered or is threatened by
injury in fact to a cognizable interest.” Donahue v. City of
Boston, 304 F.3d 110, 115 (1st Cir. 2002) (citing Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992)). The asserted
injury must be “(a) concrete and particularized; and (b) actual
or imminent, not conjectural or hypothetical.” Lujan, 504 U.S.
at 560. The plaintiff must then show that the defendant’s
conduct caused the asserted injury and that it is “likely –
rather than merely speculative – that the injury will be
redressed by a favorable decision.” Donahue, 304 F.3d at 115.
However, the First Circuit has warned that courts “cannot
apply identical standing analyses to claims for damages and
claims for prospective relief.” Id. at 118. On the one hand, a
plaintiff seeking damages must demonstrate that “he would have
received the benefit for which he now seeks compensation” absent
the challenged discriminatory policy. Id. at 118-19 (plaintiff
not hired by BPD lacked standing to seek damages where he was
“too far down the list to be even remotely considered for
hiring”); cf. Texas v. Lesage, 528 U.S. 18, 21 (1999) (per
curiam) (no cognizable injury under § 1983 where government
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would have made same hiring decision absent challenged racebased policy).
A plaintiff requesting forward-looking relief, on the other
hand, need not meet this bar, which can be sky-high in the
hiring context. For the following reasons and after a review of
the entire record, I conclude that Caulfield lacks standing to
seek damages, but is entitled to proceed on his claim for
injunctive relief.
A. Damages
Caulfield contends that, absent the gender certification,
BPD might have bypassed some of the more highly ranked
candidates on the main certification, considered candidates in
the 55th tier, and ultimately hired him for the position. But
Caulfield does not stand on firm ground.
As Caulfield concedes, the ten women hired from the
selective certification were all ranked more highly than he was. 3
Under PAR.08(4), the BPD would have been obliged to consider
them for appointment before considering Caulfield, regardless of
how many officers BPD would have hired absent a special
certification. The record does not make clear how many
candidates the BPD would have sought to hire had they not
requested a selective gender certification. Assuming the BPD
3
The BPD also hired one female from the main certification who,
like Caulfield, was ranked 55th.
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would have hired forty-five officers, the addition of the more
highly-ranked women onto the main certification list would have
made it less likely that Caulfield could have been reached for
consideration. If the BPD decided to hire fifty-five officers
altogether, the additional ten spots would likely have been
filled by the ten higher-ranked women. While the BPD might have
chosen to bypass some of these women and evaluate others lower
ranked on the certification, that possibility is “rank”
speculation.
In short, while Caulfield’s imagined scenario is possible,
his “contention is little more than an allegation that an injury
might have occurred if a series of events transpired in a
certain way.” Pugsley v. Police Dep’t of Boston, ___ N.E.3d ___,
2015 WL 4577566, at *3 (July 31, 2015) (slip op.) (plaintiff who
challenged BPD’s use of selective gender certification lacked
standing because he “failed to articulate an injury that is
anything but hypothetical”).
Such speculation is insufficient to establish Caulfield’s
standing to seek damages. As the First Circuit explicitly
stated, Caulfield must show that he “would have received the
benefit for which he now seeks compensation,” not merely that he
could have. Donahue, 304 F.3d at 119; see also Cotter v. City of
Boston, 323 F.3d 160, 166-67 (1st Cir. 2003) (holding that
plaintiff lacked standing to request compensation for BPD’s
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challenged conduct of denying him a promotion under its raceconscious employment policy).
Accordingly, Caulfield’s claim for compensatory damages is
DISMISSED as to all counts.
B. Injunctive relief
The parties also dispute the closer question of standing to
seek prospective relief. To satisfy the injury component of
standing, a plaintiff must show that (1) he is “able and ready”
to compete for the employment position in the future, and (2)
the employer’s allegedly discriminatory practice will prevent
him from competing on an “equal footing” at that point. Cotter,
303 F.3d at 167; see also DeLeo v. City of Boston, 2004 WL
5740819 at *12 (D. Mass. Nov. 23 2004) (“[A] plaintiff may have
standing to pursue a claim for injunctive relief if he . . . is
likely to be exposed to unequal treatment”) (quotation omitted);
Northeastern Fla. Chapter of Assoc. Gen. Contractors v.
Jacksonville, 508 U.S. 656, 666 (1993) (plaintiffs had standing
to challenge minority preference in city contract awards where
they were “able and ready” to bid on contracts but could not
because of minority set-aside).
In light of this standard, Caulfield has demonstrated that
he is likely to be denied the opportunity to compete on equal
footing in the BPD’s hiring process on account of his gender,
because the BPD has requested the selective gender certification
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multiple times since 2010 and HRD has always granted these
requests. See Donahue, 304 F.3d at 119-20. Even if he is more
highly rated than the women on any future selective
certification, Caulfield will be ineligible for any vacancies
reserved for them simply because he is male. This is enough to
show that Caulfield is likely to receive unequal treatment in
his consideration for hiring by the BPD.
Moreover, Caulfield took the civil service examination
again this year and has already reapplied for appointment to the
Academy. Caulfield is thus “able and ready” to apply for the
sought-after benefit – gender-neutral consideration for officer
hiring by the BPD – but likely cannot do so on an equal basis
due to the BPD’s continued use of selective certifications.
II.
Rule 12(b)(6) Motion
A. Standard of Review
In considering a motion to dismiss under Fed. R. Civ. P.
12(b)(6), courts must accept as true all well-pleaded facts and
draw all reasonable inferences in favor of the plaintiff. Katz
v. Pershing, LLC, 672 F.2d 64, 70-71 (1st Cir. 2012).
Additionally, the court must construe the complaint liberally.
Town of Barnstable v. O’Connor, 786 F.3d 130, 138 (1st Cir.
2015). “Dismissal is only appropriate if the complaint fails to
allege a ‘plausible entitlement to relief.’” Rodriguez-Ortiz v.
Margo Caribe, Inc., 490 F.3d 92, 95 (1st Cir. 2007) (quoting
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Bell Atl. Corp. v. Twombly, 550 U.S. 544, 559 (2007)). “A claim
has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Accordingly, the
complaint may be dismissed “[i]f the factual allegations . . .
are too meager, vague, or conclusory to remove the possibility
of relief from the realm of conjecture.” Morales-Cruz v. Univ.
of P.R., 676 F.3d 220, 224 (1st Cir. 2012).
B. M.G.L. c. 151B (Count I)
Caulfield alleges that the defendants violated M.G.L. c.
151B, § 4, by affording a preference to female candidates
without supplying a bona fide occupational qualification. Dietl
and Howard argue that the c. 151B claims against them must be
dismissed because Caulfield failed to exhaust his administrative
remedies with the Massachusetts Commission Against
Discrimination (MCAD).
Even if Caulfield had standing, this Count is barred as to
Dietl and Howard because Caulfield concedes that he did not name
those parties in his complaint with the MCAD. A party seeking to
bring a discrimination claim under c. 151B must first file a
charge of discrimination with the MCAD. Chatman v. Gentle Dental
Ctr. of Waltham, 973 F. Supp. 228, 233 (D. Mass. 1997). “The
failure to name a party in a charge filed with the MCAD may
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preclude the plaintiff from later maintaining a Chapter 151B
claim in court against that party.” Id. However, Chapter 151B
claims against a defendant not named in the MCAD charge will be
sustained if the complaint alleges that 1) the individual had
notice of the charge against it and 2) an opportunity to
conciliate before the MCAD, even if his conduct fell within the
scope of the MCAD investigation. Wright v. CompUSA, Inc., 183 F.
Supp. 2d 308, 309 (D. Mass 2001) (dismissing c. 151B claims
against defendants not named in MCAD charge even where their
“conduct was put at issue by the administrative charge,” since
defendants lacked notice or opportunity to conciliate). Nothing
in Caulfield’s complaint suggests that Dietl or Howard had an
opportunity to conciliate the claims against them as individuals
before the MCAD.
C. Title VII (Count II)
The defendants have moved to dismiss Caulfield’s Title VII
claims on the ground that he failed to exhaust his
administrative remedies. The “unexcused failure to exhaust
administrative remedies effectively bars the courthouse door”
for a Title VII discrimination claim. Jorge v. Rumsfeld, 404
F.3d 556, 564 (1st Cir. 2005). “Administrative remedies [can]not
be considered to [be] exhausted . . . until the EEOC issue[s] .
. . a right-to-sue letter.” Francesci v. U.S. Dep’t of Veteran
Affairs, 514 F.3d 81, 85 (1st Cir. 2008); see also Maillet v. TD
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Bank U.S. Holding Co., 981 F. Supp. 2d 97, 99 (D. Mass. 2013)
(plaintiff must receive EEOC right-to-sue letter to fulfill
Title VII exhaustion).
At the hearing, Caulfield conceded that he had not
exhausted his administrative remedies with the EEOC because he
had not yet received a right-to-sue letter. Caulfield has sought
leave to amend his complaint, but faces a bump in the road
because the EEOC has denied the right-to-sue request on
timeliness grounds. This will inevitably, as day follows night,
trigger another round of briefing. I will resolve this issue
once it has been fully briefed.
D. § 1983 (Count III) 4
The BPD moves to dismiss the § 1983 claim for injunctive
relief against the gender-based policy of seeking a selective
certification. Unjustified government acts that discriminate on
the basis of gender are unconstitutional, see, e.g., United
4
Since Caulfield lacks standing to seek damages, the motion to
dismiss his § 1983 damages claims against Dietl and Howard in
their individual capacities must be ALLOWED. This would remain
so even if Caulfield had standing to seek damages, since
qualified immunity would then bar his § 1983 claims against
Dietl and Howard. Reasonable officers would not have understood
their use of a selective gender certification to violate the
Equal Protection Clause. See Joyce v. Town of Dennis, 705 F.
Supp. 2d 74, 77 (D. Mass. 2010) (directors of town golf course
were immune to suit after prohibiting female golfer from
competing in men’s members-only tournament). However, Caulfield
may still seek injunctive relief against those employees in
their official capacities.
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States v. Virginia, 518 U.S. 515, 532-33 (1996), and genderbased classifications are reviewed under intermediate scrutiny.
Mass. v. U.S. Dep’t of Health and Human Servs., 682 F.3d 1, 9
(1st Cir. 2012); see also Virginia, 518 U.S. at 533. Genderbased classifications violate the Equal Protection Clause unless
they (1) serve important governmental objectives and (2) are
substantially related to the achievement of those objectives.
Id.; Laro v. New Hampshire, 259 F.3d 1, 10 (1st Cir. 2001).
The BPD’s primary argument for dismissal is that the
selective gender certification is constitutional because the
City has an operational need for female officers. It relies on
DeLeo, which involved another challenge to the BPD’s hiring
policies, including its use of selective gender certifications.
2004 WL 5740819, at *12 (D. Mass. Nov. 23, 2004). The Court
concluded that such certifications met both prongs of the
intermediate scrutiny standard, citing the City’s “ongoing
operational need to hire female police officers for
investigations, the handling of female suspects and female
prisoners, and interaction with female victims of sexual assault
and rape.” Id. For this reason, the defendants contend that the
City’s operational need for female officers remains strong
enough to satisfy intermediate scrutiny.
This argument makes too much of Deleo, which was resolved
on a full summary judgment record detailing the BPD’s
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“operational need” for female officers in 2004. Caulfield, on
the other hand, has had no opportunity to conduct discovery and
offer evidence regarding whether any such need for female
officers remains over one decade later. In Pugsley, the BPD
argued that its use of the selective gender certification was
justified “by the statistical disparity between the number of
female Boston police officers and the number of female suspects
and female victims that come into contact with law enforcement.”
2015 WL 5740819 at *5. Similarly, at the hearing in this case,
the BPD asserted that the increasing percentage of females
involved in criminal activity, as well as the increasing number
of female crime victims, necessitated hiring a greater number of
female officers. But the plaintiff has not yet been permitted to
probe those statistics or the justification from the BPD as to
its need for gender certifications. To address Caulfield’s
position on the merits at this point would be premature.
Moreover, the viability of BPD’s selective certification
policy is currently being tested at the MCAD and in the
Massachusetts courts. On August 17, 2014, the MCAD found
probable cause that the BPD had discriminated against a male
officer candidate by using a December 2010 selective gender
certification. Toomey v. BPD, No. 10BEM03305. And in Pugsley v.
Police Dep’t of Boston, the Supreme Judicial Court recently
addressed a challenge to selective certifications under M.G.L.
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c. 151B, suggesting in dicta that “the use of statistical
disparities, without more, will generally be insufficient to
support a BFOQ.” ___ N.E.3d ___, 2015 WL 4577566, at *3 (July
31, 2015) (slip op.). Although the SJC dismissed Pugsley’s claim
for lack of standing, it left it to the MCAD “to particularize
the showing necessary for engaging in such discriminatory hiring
through the BFOQ process.” Id. These ongoing developments in the
case law further support the resolution of Caulfield’s case on a
better record.
At the motion to dismiss stage, particularly in light of
Pugsley and Toomey, Caulfield’s allegation that the BPD “had a
standing policy that was itself unconstitutional” is “sufficient
to anchor” a municipal claim. Haley v. City of Boston, 657 F.3d
39, 51 (1st Cir. 2011).
ORDER
The motions to dismiss Caulfield’s claims for damages are
ALLOWED (Docket Nos. 14, 21). The motion to dismiss the City as
a defendant is ALLOWED (Docket No. 21). 5 The motion to dismiss is
otherwise DENIED.
/s/ PATTI B. SARIS
Patti B. Saris
Chief United States District Judge
5
The plaintiff conceded that his claims against the City are
duplicative of his claims against the Commissioner. He further
concedes that Count III must be dismissed as to HRD due to
sovereign immunity.
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