Feeney v. Com. of Mass.

RO, District Judge.

I OPINION THE ANTHONY DECISION

TAURO, Judge. District The in this case are By order of broad- issues treated remand from the Su Court, preme we have been instructed extensively in prior opinion. our case, Court, originally Anthony 1. obliged This entitled v. Com- cial and whether we would be monwealth, brought separate prior reaching was as two ac- consider the state claim by tions under 42 § U.S.C. 1983 four Massachu- federal constitutional in issue this case. challenging setts women the Veterans’ Prefer- Plaintiff asserts as a basis for the motion stat.-te, ence plaintiffs Mass.Gen.Laws ch. 23. The § that, reject- in the event her federal claims are Anthony in were three non-veteran ed, estopped bringing sepa- she bar, admitted to the Massachusetts rate suit based on the state claim. At oral applied positions who had for as counsel to however, argument, stipu- the Commonwealth agencies. Feeney, separate state Plaintiff in a lated that it would not seek to raise the defense suit, sought post an administrative in the civil estoppel respect plaintiffs state service. The two suits were consolidated. We subsequent proceeding claim should be a there brought by determined that plaintiffs the claims Having in the state court. in mind the Com- were rendered moot stipulation, deny plaintiff’s monwealth’s we passage April, 1975 of Mass.Gen.Laws ch. 15(a). motion to amend. Fed.R.Civ.P. appointments which § removed all municipal legal positions state and from the 3. Mass.Gen.Laws ch. § provisions of the state civil service law. We plaintiff Feeney’s considered claim on the mer- Anthony, enjoined we enforcement of the Feeney its. Our decision in the case is the statute, Massachusetts Veterans’ Preference subject presently of the court’s remand order Mass.Gen.Laws § ch. because de- before us. prived protection women of under the subsequently law. The state filed a motion for plaintiffs 2. Also before the court is motion to judgment, urging relief from reconsideration in complaint amend the to add a cause of action motion, light along That of Davis. with a mo- challenging the Veterans’ Preference Act as judgment pursuant tion relief from to Fed. Equal Rights violative of the Amendment to the denied, 60(b)(6), stay although R.Civ.P. was constitution, November, 1976, ratified in pending appeal granted. stay was The was original opinion several months after our had passage rendered moot of an interim impor- issued. Plaintiff’s motion raises several statute, Stat.1976, suspends oper- c. issues, namely tant whether an amendment to pending ation of the the out- complaint scope would be within the appeal. come of this case on The interim stat- remand, Court’s order of whether the doctrine presently provides ute is in effect and a modi- require certify plain- of abstention would us to point preference fied for veterans. Supreme tiff’s claim to the Massachusetts Judi- rewarding public military, in context our put 485. In order to however, it Anthony, reconsideration But we worthy. Id. at 496. also ob- major briefly to outline of its useful some served points. (1) prime objective t is enough challenged in An- scheme of the Veterans’ Preference statute . perma- established a that thony formula legitimate and rational. The means prevents nently a non-veteran achiev- by objec- chosen the to achieve this ing appointment on the civil service place a legitimate tive must also be and rational. veteran, regardless list ahead of a of com- at Id. 497. parative test pointed scores.5 We out that “(a)s practical matter . . the Vet- We the by determined that means chosen Preference replaces testing erans’ as the Legislature the Massachusetts to reward for- determining eligibles criterion which grounded veterans were not “on a convinc- placed will be at the the list.” top of 415 ing factual rationale.” Id. at 495. We at, 489. F.Supp. pointed challenged out that the formula, The selection as it geared by is to formula was not an effort the state to status, necessarily by veteran controlled resources; priorities set for finite limiting military proscriptions federal there were less drastic alternatives availa- eligibility participation women for state, point system; ble to the such as military. Long-standing policy federal lim- any argument attempting to relate the who ited to 2% number of women could challenged job performance formula to or participate Anthony in the armed forces. qualification “specious.” was Id. at 495- Commonwealth, at 489. supra, Tradi- We 499. concluded that formula rele- tionally, enlistment appointment crite- job-related gated professional criteria and ria been more for women have restrictive qualifications secondary position. to a Id. men.6 consequence than for An inevitable 497. at limiting federal policy par- of this women’s ticipation military is that 2% Moreover, emphasized we Massachusetts veterans are women. Id. challenged preference was absolute and (T)he practical consequence opera- permanent. imposed No time limit was or of these military proscrip- tion federal attempt made “to use to those tailor who tions, in combination with Veterans’ shortly have returned civilian life.” Id. inescapable. Preference formula New approach a broad-brush Such will women ever become veterans so as to convenient, administratively but mere so, few, qualify preference; for the is not a legiti administrative convenience will any, top posi- women ever achieve a benefiting mate basis one for identifiable list, eligibility tion on civil service expense at the class of. another. Reed v. positions traditionally other than held Reed, L.Ed.2d women. Id. at Although the Veterans’ Preference stat- recognized legislative We prime statute, motive that of was designed ute sole applicant 23; passes 5. An who the civil service Mass.Gen.Laws ch. § Com- eligible monwealth, (D.Mass. written examination becomes and is placed “eligible following 1976). o'n an list” under the ranking formula: statutory procedure eligible The full applicants are certified and selected is set forth Disabled veterans in order of their com- original opinion. in our posite at 488-90. scores. compos- 2. Other veterans in of their order summary complete A6. limitations ite scores. placed seeking entry into the armed 3. Widows and widowed mothers of veter- opinion. forces is set forth in our earlier composite in order ans of their scores. F.Supp. at 489-90. eligibles 4. All other of their order com- posite scores. subordinating fifth Anthony v. Common- ous discrimination under the or four- wealth, supra, require proof its clear teenth amendments of a dis- expense criminatory purpose. facially benefit veterans even at A neutral we not be deemed vulnerable to women. As stated. equal protection challenge solely because it (T)he impact, triggered by formula’s dec- disproportionate impact. has a The Court reg- ades of restrictive federal enlistment emphasized intent need ulations, makes the operation of the Vet- “express appear not be on the face of erans’ Preference in any- Massachusetts statute,” thing impartial, policy but an neutral given but must be that consideration selection-, merely an incidental effect Dispropor- totality- of the circumstances. on the opportunities for women. highly tionate is one such relevant Id. at 495. circumstance we must consider. Rather, we found the formula to Necessarily, an invidious be purpose may often be inferred from the deliberate, attempt conscious on the facts, totality including of the relevant part clearly the to one of aid identi- fact, true, the if it is that the law bears citizens, group fiable of its those who heavily more on one race than another. veterans, qualify as ... at the ab- It infrequently is also not true that the permanent disadvantage solute and discriminatory impact . . another clearly group, identifiable Massa- practical purposes all demonstrate uncon- chusetts women. stitutionality because in various circum- Id. at 496. very stances the discrimination is diffi- The consequences adopting perma- explain grounds. cult on nonracial Nevertheless, nent absolute formula tied to we have not held that a law, federal enlistment restrictions were more neutral on serving its face and ends predictable, they than govern- were inevitable. otherwise within power pursue, ment is invalid under

II Equal simply Protection Clause because it greater proportion affect a of one THE IMPACT OF DAVIS ON Disproportionate race than of another. ANTHONY irrelevant, but it is not the pre-employment At issue in Davis was a sole touchstone of an invidious racial dis- literacy test District used of Colum- crimination forbidden the Constitu- police department. bia The district court tion. rejected plaintiffs’ allegation that the test 426 at at 2048. also U.S. S.Ct. See was “culturally slanted” to favor It whites. Village Arlington Heights Metropoli- v. determined further that the test was “rea- Housing Development Corp., tan sonably directly” require- related to the 50 L.Ed.2d 450 S.Ct. police training pro- ments of the recruit point amplified This by Justice Stevens gram, although job per- unrelated to actual in concurring opinion, his formance. 426 at S.Ct. 2040. Frequently probative the most evidence reversed, The holding D.C. Circuit irrele- objective of intent will evidence of be plaintiffs allege vant the failure of happened what rather than evi- actually prove in discriminatory intent the exam’s subjective describing dence state of design and administration. It determined normally ac- mind of the actor. For the disproportionate percentage of presumed tor to have intended nat- blacks who had failed the exam sufficed to ural This consequences of his deeds. violation. establish a constitutional Id. at particularly govern- true in the case of 236-37, 96 2040. S.Ct. frequently mental action which is reversing appeals, the court of product compromise, of collective deci- Supreme stated that sionmaking, Court claims invidi- and of mixed motivation. J., (Stevens, poor at densome average Id. and to the S.Ct. concurring). Dayton also Board Ed- black than more affluent white. Brinkman, ucation S.Ct. (Footnotes Id. at J., (1977) (Stevens, 53 L.Ed.2d 851 omitted.) concurring). this underpinning factual case is major distinguishing A factor Davis from entirely already different. As we have em- the case at the nature of selec- hand is phasized, the Veterans’ Preference statute procedure challenged tion case. Al- each “anything an impartial, policy but neutral though plaintiffs originally in Davis merely of selection with an incidental effect challenged the entire District of Columbia on for women.” 415 scheme, sole issue police recruitment Here, at 495. does not Supreme validity before the Court was the challenge the civil service written examina- of the written service test. Wash- civil but, rather, the overriding ranking tion for- 233-35, supra ington job prefer- mula that mandates absolute 96 S.Ct. 2040. non-veterans, regard- ence to veterans over The district court Davis determined comparative less of test pref- scores. This test was neutral effectively erence formula “replaces testing face. Id. at deter- This criterion for determining eligi- apparently provided mination basis will placed top bles at the the list.” that, the Court’s statement Id. A rule designed that a statute to serve In analyzing “totality rel invalid, neutral ends ab- is nevertheless legisla facts” evant so as to determine justification, in prac- sent compelling challenged underlying tive intent stat tice it race benefits or burdens one more ute, we necessity must of examine official far-reaching than another would be and policies or about, they acts to determine whether questions would raise serious and natural, invalidate, tax,' had the range a of foreseeable and inevitable perhaps whole imp welfare, service, public regulatory, producing discriminatory and effect of a licensing may Washington Davis, supra, that more bur- v. statutes 426 act.7 “foreseeability ficulty stating proof 7. Defendants assert that a test” of direct that the Specifically, discriminatory express violates in Davis. mandate need not be or rely appear defendants on the Court’s in remand Aus- the face the statute. 426 U.S. at Independent 241, tin School v. Moreover, District United 96 S.Ct. 2040. Stevens’ Justice States, 990, 517, 429 97 U.S. S.Ct. 50 L.Ed.2d suggests precept concurrence that this has con- (1977), proposition 603 for the that “inferences vitality. 253, (Ste- tinued Id. at 96 2040 S.Ct. flowing arguably about intent vens, J., foreseeable concurring). consequences inquiry is not a substitute” Defendants cite two cases where the “fore- specific Reply into intent. Defendants’ Brief at seeability rejected. test” was considered and City Chicago, United F.2d States v. 549 415 import. ambiguous (7th An 1977); order of in remand is Cir. Guardians of the New Ass’n suggests City Dep’t Justice Powell’s concurrence the re York Service Police v. Civil Comm’n, prompted by in F.Supp. (S.D.N.Y.1977). mand Austin have been 431 526 clearly distinguishable. the breadth of the remedial relief ordered. 429 These both, In cases are procedures challenged U.S. 97 S.Ct. 517. See also School were found to States, Here, District of Omaha v. United 433 U.S. be neutral. we have determined chal- 2905, (1977); lenged statutory “anything 53 L.Ed.2d 1039 but an to be scheme Dayton Brinkman, impartial, policy Board of Education v. 433 neutral of selection.” 415 (1977). F.Supp. 53 L.Ed.2d 851 presume We will not We do that in all Court utilized not hold cases abrogate attempt require- remand order in Austin to the basic to circumvent solely by proof precept person presenting that a is deemed to intend the ment of Davis natural, impact. probable foreseeability dealing conse We are here foreseeable facially quences Nothing in with a neutral. his actions. Davis Moreover, rejection equal protection indicate in has clearly inevitable long-standing principle. cases of this See Ar on a These identifiable class. Nyquist, (W.D.N.Y. determining v. are relevant thur factors consider Indeed, 1977). recognized underlying legislative the Court the dif- intent. J., (Stevens, S.Ct. 2040 con monstrable relation to an individual’s fit- curring); Lansing N.A.A.C.P. v. Board of public ness for service.” Id. at 498- civilian Education, (6th 1977). 559 F.2d 1042 Cir. process 99. We realize that a due protection judged by claim is not to be was, least, chargea- at the applicable standards under Title VII. ble with knowledge long-standing supra, v. federal regulations limiting opportunities holding Our Massa- military,8 and the inevita- chusetts civil service process selection is un- ble discriminatory consequences produced application solely their constitutional is not based on the for- fact mula.9 relationship job it bears no perform- ance. But the fact practical the criteria set application, the combination forth in the military challenged statutory federal regulations enrollment formula

with the job performance Veterans’ Preference is a one- fail to measure is one addi- punch two that absolutely perma- tional bearing question circumstance on the nently forecloses, on average, 98% of this of discriminatory intent.10 state’s women from obtaining significant Finally, presented the statistical evidence civil service appointments. by plaintiff pattern demonstrates of ex- Anthony Commonwealth, supra, at 498. clusion of women from the civil service.11 filed, At the time the suit was leg

We must also assume that 2% islature cognizant of the fact the Massachusetts veterans were women.12 Al- stringent entry though appointees criteria embodied in the 43% of the civil service military federal regulations bore “no de- were a large percentage of them Commonwealth, Comment, 8. See erence formula. See Veterans’ Pub- (D.Mass.1976). 489-90 Employment lic Preference as Sex Discrimina- tion, (1977); Fleming 90 Harv.L.Rev. legislative history suggest 9. The does an aware- Shanor, Veterans’ Preferences Public part pre- ness on the of the lawmakers of the Employment: Unconstitutional Gender Dis- discriminatory impact dictable crimination?, Emory L.J. formula would have on women. Until preference most of the significant veterans’ statutes and It is to note that the Court in regulations provisions ap- civil service adopted finding included Davis the of the district court proving practice requisitioning only the fe- challenged “directly that the test related to the applicants positions. male for certain Jobs requirements for police training program.” requisitioned exempt- which women were were 235, 426 U.S. at 96 S.Ct. at 2045. operation ed from of the statute. See Mass. 31, (1966); 1922, Gen.Laws ch. 23§ Acts ch. argues presenta- 11. Plaintiff that this statistical 463; 1919, 150, 2; 1895, Acts ch. Acts § ch. presumption purpose- tion of itself creates a 501, Although 2.§ the 1895 statute on its face discrimination, thereby shifting ful the burden appears exempt operation to women from the proof to defendants. See Castaneda v. Parti- respect of the veterans’ to all da, 482, 430 U.S. 97 S.Ct. 51 L.Ed.2d 498 jobs, prior subsequent legisla- available (1977); history suggest statutory language tive (1976). 48 L.Ed.2d 597 In merely pre-existing was consistent with the subsidiary findings view of our and ultimate permitting single rule sex lists. See Civil Ser- conclusions, based on an uncontradicted XIX(3) promulgated pursuant vice Rule to Stat. record, concerning the existence of discrimina- request ch. 320. If a were made for a tory plaintiff we conclude that has met applicant, female thority the Commissioner had no au- proof her burden of without the benefit of a certify position, a male for the re- presumption and, therefore, unnecessary find it gardless Op.Att’y of his veteran status. Gen. procedural to address this issue. legislature repealed In this statutory exemption. Acts ch. 219. argument parties 12. At oral stated that exemption operated Statistics show that the agreed there is no reason to revise the state- only preserve stereotypically “female” cleri- Anthony. ment of facts submitted in jobs cal for women. See 415 Moreover, there is no reason to assume that Contrary assertion, to defendants’ elimination changed measurably, the facts have exception inasmuch of this vestig- did not remove the last as the statute has es of scheme; not been in effect sex discrimination from the passage point preference due to only of the interim positions served to make all 2, supra. subject statute. See n. overriding pref- civil service grade black, positions years figure served lower for which had been roughly ap- traditionally apply. men did not Of the proximating proportion blacks appointed year period, women over a ten area. That court found that also the De- July June through partment had “systematically and affirma- veterans, were only 1.8% while tively sought officers, 54% of the to enroll black many had veteran men 415 F.Supp. passed status. of whom the test but failed to report duty.” for 426 U.S. at 96 S.Ct. at 2045. The facts demonstrate that this absolute The situation here in marked contrast. job preference a devastating formula had proffered Commonwealth’s 57-43 ratio impact plaintiff’s attempts on the to ad- men misleading. large women is A her position in civil service. appointees percentage vance of female serve in highest she received test the second grade permanent positions lower for which for the position Secretary score of Assistant males traditionally applied. have not Some Examiners, to the Board of Dental but was women appointments received their eligibles, ranked sixth on the list of behind through a practice now defunct veterans, whom five male four of had re- appointing requisition authorities would lower ceived scores. was not certified She only applicants jobs. certain male veteran and a with a lower examina- at 488.14 While the officials in appointed. tion score was sought Davis “systematically” to recruit mi- norities who passed had the preemployment years Two applied later when she test, the defendants here have demonstrat- plaintiff another administrative post, re- no attempt mitigate ed permanent highest exam, the third ceived mark on the and absolute on women of a formula list, but ranked on fourteenth be- systematically excludes them from de- veterans, hind twelve male eleven of whom public sirable positions even though had lower test scores. Again, was they have qualifications their demonstrated appointment. certified for The third by passing a written exam.15 The Com- applied time she posi- for an administrative that, monwealth argues tion, plaintiff received a score analysis historical makes it clear that the placed have top twenty her within the enactment of legislation by this places on the Gen- eligibles By operation list. eral formula, Court however, way was in motivated she ranked 70th desire to list, against discriminate women. behind 50 veterans with male Rather, legislative motivations for lower test scores. Id. at 497-498. Massachusetts Veterans’ Preference stat- figures, These and others cited in our (1) utes were: to reward those who have opinion,13 pattern earlier show clear country; sacrificed in the service of their competitive exclusion of women from civil (2) readjust- to assist veterans in their positions. Unlike the defendants in life; (3) ment to civilian to encourage Davis, has Commonwealth not made patriotic service. showing any of affirmative efforts to re- Brief for Defendants at 25. cruit or of a recent rise in the percentage of women appointed competi- to We disagree. It clear that the Com- tive civil service positions. In Davis the monwealth’s motive to benefit its vet- district court found however, that 44% the new clear, erans. Equally is that its police recruits over preceding three purpose by intent was to achieve sub- 491-92, Comm'n, 13. (S.D.N.Y.1977). See 497-98. emphasize finding We that our of discriminato- 10, supra. n. ry See solely the Common- based on wealth’s failure to affirmative efforts to show recognize “(m)ere 15. We absence of re merely recruit women. fac- This is one of the efforts, by equivalent cruitment itself is not rely considering totality we tors on in discriminate,” an intent to Assoc. of Guardians circumstances. City Dept. the New York Police v. Civil Service ordinating employment opportunities of its 48 L.Ed.2d On hand, question women. The course of action chosen there can be no about one unequal impact practically had the conse- of this law: Commonwealth inevitable quence speaking, permanently shuts off whole discriminating against the wom- employment en v. areas of state to women. On of this state. Common- hand, Judge Murray points out wealth, the other supra, fact dissent, strong initial case can be his a salutary Commonwealth a motive does had that it is “neutral proposition made for the justify not its intention to realize that end face,” any on not motivated in ordi its by disadvantaging its women. by discriminatory intent.* Ar nary sense a require Davis not does therefore, challenged guably, statute is prove action rested which, notwithstanding the kind of law its solely racially discriminatory purposes. widespread impact employment on women’s Rarely can it be said that a or opportunities, upheld should be as constitu body operating administrative under a Washington tional. The Davis thrust of v. broad mandate made a decision motivat- Village and related decisions such as concern, solely by single ed or even that Arlington Heights Metropolitan Housing v. particular purpose was the “dominant” Corporation, 429 “primary” one. (1977), accept L.Ed.2d 450 is that we must Village Arlington Heights Metropoli- v. programs that well-intentioned may have Development tan Housing Corp., supra, 429 society compli uneven side effects: is too (Footnotes 97 S.Ct. at 563. discriminatory consequence for every cated omitted.) disqualify legitimate policies. Welfare The fact that there are less drastic alter- programs, foreseeably benefit example, natives available to the state to achieve its minority groups disproportionately, just as veterans,16 purpose of aiding underscores tax deductions do whites. Examinations perma- our conclusion that the absolute and (as Davis) Washington designed rea preference adopted by nent the Common- sonably unqualified to weed out those improper wealth resulted from evaluation work, police appli minority eliminate competing By considerations. intention- city cants more than others. Town and ally sacrificing the career laws, planning designed improve commu veterans, its women in order to benefit life, nity separate because of economic Commonwealth a constitutionally made im- factors, create barriers to minorities. Soci permissible judgment. value ety paralysis would soon be in a state of holding We reaffirm our that the Massa- adopt it could only having strictly laws chusetts Veterans’ Preference Act denies equal impact upon groups all and classes equal and, protection under the law there- within it.

fore, is unconstitutional. fully recognize But while I Washington law the v. Davis is the land CAMPBELL, LEVIN H. Judge Circuit but also that reflects an principle essen- (concurring). upon sweep tial limitation This is easy protection clause, not an case to deal with I do not believe that under Massachusetts veterans law ac- Commonwealth, The statute can likewise be not to said be (D.Mass.1976). discriminatory based on a in the sense that no one thinks that pretext it was enacted as a * facially to harm women. While the harm to The statute can be called neutral in that employment opportunities female and, strictly is extensive it does not make a division based scheme, inevitable, given provides employment preference it sex. The law veterans, prompted passage was not this harm which of for not males. While veterans are law, entirely justifiable male, female, but rather the de- a few veterans are and there . 98% sire to aid many individuals who had served their are males who are not veterans. country, great often at sacrifice. This, eligible tually Judge time are for preference, falls within its ambit. as demonstrates, is no or- convincingly Tauro expanded be class cannot in the near future dinary merely an having incidental to include more women. Thus its “neutrali- impact. goes a statute which unequal It is ty” skin-deep. is at law best The was sexu- long making level way upper a towards outset, ally skewed from the since the ex- Upon employment preserve. state a male clusionary upon effect women was not inspection, seeming of “neutrality” close merely predictable absolutely inescap- but law, veterans preference and even able “built-in”. and seeming absence of intentional discrimina- inevitability This same of exclusionary tion, open question. are both to serious impact upon women also undermines the I turn first to the matter of its neutrali- argument of discriminatory intent. ty. dividing While the line between veter- a goals There is difference between and and is ans non-veterans not the same as the must, intent. Conceding, as we all that the women, dividing line men between and goal veteran, was here to benefit the there ineluctable effect law is an of this to confer is legislature no reason to absolve the from absolute a priority upon class that 98%is awareness means chosen achieve in sphere employment male a of where goal this would freeze out of all women, generally, should have the same jobs sought by those actively state men. To does, access as men. is to What laws sure, be did not wish to has, reasons, a group unique take cutting-off harm But the of women. wom- exclusively been selected from the almost en’s was inevitable an con- population (military being male comitant chosen inevita- scheme —as is), grant what it was it an abso- proposition ble up, as the tails is preference entirely lute in an different heads be down. a must Where law’s conse- sphere public employment where male inevitable, quences they are that can mean- preference not the rule but ingfully be described as unintended? constitutionally law impermissible. The Doubtless if con- may “facially in neutral” the limited all, regarded sidered at was as an accepta- overtly sense and it is not based on selection aiding ble “cost” veterans. But sex, but since the preferred class is 98% society properly elect any to aid veterans or virtually male effect is if it the same as group other at the abolishing equal cost of were. employment opportunities major a seg- in impact Washington The public my view, ment employment? v. Davis was far less inevitable: the selec- the answer is “no”. issue, examination, police tion device at society may not say This is not to did not mandate the recruitment of a class upon bestow But I benefits veterans. think up, overwhelmingly, of whites. made construct absolute system not past experience might While have indicated preference virtually impos- which makes it fewer than proportionately blacks woman, talented, how sible for a no matter examination, pass whites the neutral job also of interest obtain a that is this not an inevitable outcome: a black system fundamentally to males. Such a who was might determined succeed conferring upon different from the veter- up of extra past dint effort make disad- ans of financial which all tax- benefits to vantages; coaching recruiting meas- contribute, payers giving ures, as well as educational and economic degree preference them of some improvements, might, over the in- years, government point under a employment, as crease the number of successful blacks. No system, quid pro quo for time lost in such opportunity here for exists women. military The measures service. latter do prefers veterans’ law which, segment already impose unfairly upon established one class as a matter fact, law, contrast, of historical 98% male. our society; Because instant persons during served war- disproportionate who have forces women to pay a protection laws in benefiting violation of by share the cost of veterans sacrificing their chance to' be selected own in all civil Fourteenth Amendment areas of employment. for employment service in the Commonwealth. neu- Although recognizing facially that “[a] concededly ques- Thus while it a close may tral statute not be deemed vulnerable tion whether the Massachusetts veterans’ equal protection challenge solely because regarded to be as sort of it disproportionate impact”, has a ante at neutral with classification unintended ef- 146, Judge Tauro reaches Davis, this determina- by Washington fects absolved v. I on feel balance it is not. by Rather the tion here finding dealing are “[w]e realistically is more law viewed as substan- neutral”, facially a statute is not tively non-neutral. The destruction of nor- ante at fn. and that it in the mal female state em- pur- intent to achieve Commonwealth’s ployment system is too evident a conse- pose its subordi- benefiting “by veterans quence super-imposition veterans nating employment opportunities of upon class absolutely preferred that women”. Ante at 149-150. Judge Camp- system. If this can done constitutional- bell judgment concurs in the of unconstitu- clause ly, equal protection of the Consti- tionality, finding that the inevitability and is, in of employment, tution this area little degree of disproportionate effect make more than a pretense, hollow whatever it statute non-neutral and that the inevitabili- theory. remain in As I think the ty of suggests discriminatory effect intent. unique problem posed in this case is distin- respect, disagree findings With I that these guishable contemplated from any in Wash- demonstrably the result reached are Davis, ington v. I to our adhere former tenable. judgment. MURRAY,

FRANK J. Senior District I Judge (dissenting). official is unconstitutional racially disproportionate impact. braced the proposition that a law or other reflects a phasis in original.] (1977) # act, holds: racially discriminatory purpose, sf( without [0]ur # 2047, 2049, solely cases have not em regard ^[*] because it has a women. it to whether # 48 L.Ed.2d [Em $ ry preference ing). treatment sex lines erans and Clearly monwealth of The Veterans’ Preference its face Most (1976) and does On its face non-veterans gender-based. Id. at persons (Campbell, are similarly Massachusetts, 503 (Murray, males, favored “division between vet provide is not drawn situated men and statute is neutral C. Anthony v. Com although J., for dissimilar concurring). the statuto J., dissent a sub along stantial those not are number of so favored have not held that a [W]e larger also

law, males. Non-veteran women in serving neutral on its face ends otherwise numbers power govern- within the share with non-veteran men ment pursue, statute, is invalid under disfavor of but number of Equal simply Protection because Clause those aided statute indeed are wom greater proportion affect a of one en. explicitly The statute includes women race than of another. requirement in its time during service war, duty. combat Mass.Gen. but not The majority today determines 43; 21; Laws ch. ch. cl. § § Washington Davis, supra, supports their Op.Atty.Gen., Although opera 25-26. previous holding Massachusetts statute, tion greater proportion it favors Veterans’ Preference males Mass.Gen. Laws ch. deprives higher women of than females for civil §

153 not the sole touchstone of an positions,1 statutory the classification has invidious Id., racial pretext 96 not shown to be a mere discrimination.” been racially of invidiously S.Ct. at 2049. Proof discrimi- accomplish purpose the dis- natory required is purpose or Geduldig criminating against women. See Equal show a violation the Protection Aiello, v. 417 94 S.Ct. 41 U.S. [Emphasis supplied.] . . Clause. (1974); Electric v. L.Ed.2d 256 General Co. Gilbert, legislators because 429 97 S.Ct. 50 is [I]t Moreover, (1976). properly it are concerned with 343 is not L.Ed.2d balancing competing numerous considera- the disputed statutory reviewing tions that from courts refrain purpose disqualifying for the not enacted decisions, the merits of their absent a appoint- receiving women civil or showing irrationality. of arbitrariness v. Anthony Commonwealth Mas- ments. just But racial discrimination is not an- sachusetts, supra at 495. competing other consideration. When attempted distinction between the proof there is a a discriminatory totally test in Davis and the statute here is motivating has been a factor in unconvincing: neutral one is no more than decision, judicial this deference is no In each classification the other. case the longer justified. [Emphasis supplied.] neutral, facially operation and in the effects court, The record before extent uneven; are is that difference it provides and circumstantial direct impact here a weightier statute has on the opera- evidence of not show the does alone group, impact relevant and is not tion of statute and effect to be a determinative, Davis, v. supra, pattern, unexplainable grounds clear 96 426 U.S. S.Ct. 2040.2 employ- other than an intent to limit the so, ment women. This is II whether the are viewed total- relevant facts Arlington Metropolitan v. Heights Conceding ly separately. factor of 252, 264-266, Housing Corp., 97 429 U.S. unequal impact foreseeable, it was and that 555, 563, (1977), 450 S.Ct. L.Ed.2d showing of action unconstitutional has not said: Court government been made. Even in Davis the in Washington decision last Term Our might officials there well have foreseen v. that blacks would not do as well on the test [96 (1976), L.Ed.2d clear that made Chapter, as whites. Boston 597] N.A.A.C.P. Beecher, action will held (1st official not be unconstitu- F.2d Cir. solely 1974). tional because it results a racial- part legis- Awareness on disproportionate “Dispropor- ly impact. that disproportionate impact lature irrelevant, impact Awareness, is not but it tionate like enough.3 follow Unequal plaintiffs treatment of interest argument weighing 151. But in his opportunity employment public reason, alia, impermissi- under a statute is for that inter serving pow- bly discriminatory against statute ends otherwise within the it cannot be pursue the state to er of violates no fundamen- overlooked that the unfavorable guaranteed tal interest feder- statute is shared non-veteran alike large al constitution. Massachusetts Bd. of Retire- number of non-veteran men. Murgia, ment v. L.Ed.2d Since the here is concurring opinion 3. See the of Mr. Justice face, undisputed neutral on its it is since Stewart, joined by Powell, Mr. Justice in Unit the statute was not to harm wom- enacted Organizations ed Jewish Williamsburgh, Inc. en, benefit scheme to veteran Carey, 144, 180, public employ- men women in the area (1977): 51 L.Ed.2d 229 disadvantage ment non-veteran men That the was aware of race when and non-veteran women does offend the it drew might the district suggest lines also equal protection clause of Fourteenth discriminatory purpose. Such awareness Amendment. not, however, equivalent of discriminato- Judge Campbell states this result is an “ines- ry ” intent. capable law, and ‘built-in’ feature of the ante cases, lection proof apply of but those cases do not in foreseeability, discriminatory required. Arlington Heights is The of this case. and other evidence context legislative “[bjecause of the statute with its of the history pointed that nature of out clearly task, however, is unequal impact ex- jury on we have selection plainable purpose prefer- of having of permitted finding constitutional viola ring qualified for consideration for pattern veterans tion even when the statistical does jobs.4 civil service approach the extremes of Yick Wo [v. Hopkins, 356, 1064, 118 6 U.S. 30 is preference The statute not vulnerable (1886)] L.Ed. 220 Lightfoot, or Gomillion [v. may the claim that intent 339, 125, L.Ed.2d 110 relationship be inferred because there is no (1960)] 266, n.13, . . ”. 429 at preference job perform between the and S.Ct. at 564.5 Whatever the exact focus of place, ance. In the first the contention of cases, the Court in jury-selection the Court no relationship open dispute, such see makes it clear even in those cases Jones, 252, Feinerman v. impact alone is determinative only when it (M.D.Pa.1973), if but even that contention emerges pattern, as “a unexplain clear prevail, were to would bear on intent only it able grounds race”, other than Arlington job performance only goal were the Heights, supra at 97 S.Ct. at by 564. The could serve means of the facts here fit preference. do not into obviously That is not the case that mold: it here, is undisputed preference for it is in the national interest here is enlistment in services be encour the armed based on a help determination to veteran see, 93-857, aged, H.Rpt. No. g., e. 93rd men and women and not non-veterans. (Armed Cong., (1974) 2d Forces Sess. Enlist Plaintiff’s on Castaneda v. Parti- reliance 1974), ed Revision Act of Personnel-Bonus da, 51 L.Ed.2d hiring preferences and are well-established Castaneda, (1977), misplaced; furthering See, purpose. means for e. address, Judge Tauro finds no need to ante Commonwealth, g., Anthony supra 148, n.ll, distinguishable from the 496, 497; 42 2000e-11. U.S.C. § case before case us. In that statistics were used to number show that the of Mexican- presented The statistical evidence plaintiff grand juries Americans provides support normally on certain for an infer- expected, jurors discriminatory purpose. ence of a be been This is had chosen impact randomly, higher an argument, Arlington Heights and was so much than the (and Davis) proof requires of intent as “a actual number of Mexican-Amerieans called motivating systematic prima factor”. Plaintiffs had made out a facie analogizes exclusion argument jury-se- case of protection violation. The sta- and De Jure Sex Discrimination Under 4. The effect of certain enactments appear protective Equal of women. See A to be Protection Clause: Reconsideration of St.1896, Employ- St. c. 1 and c. § § the Veterans’ in Preference Public ment, (1976-77). Each sets of the out details 26 Buff.L.Rev. nothing herein shall concludes: “But contained prevent be construed to certification and referring 5. The Court be to the difference employment Opinion of women.” See of the between of inference from the Justices, 592-593, 44 N.E. 166 Mass. cumulative series of administrative pro- legislature in 1971 revised the an inference from the im determinations requisitions, allowing single vision sex with the pact promulgated prior legislative of a rule jobs pro- result of “women’s” that the number action, City or administrative see Shield Club v. severely preference tected from the limit- Cleveland, (N.D.Oh. ¶ 14 E.P.D. 7763 at 5772 ed, ap- but the the revision would 1976); referring presumption, pear prevention occupational to be the sex likely cases, jury more cases than other single discrimination: allows sex random, that the result of selection will be see requisitions approval after has been Ely, Legislative J. Administrative Motiva obtained the Massachusetts Commission Law, tion in 79 Yale Constitutional L.J. Against Discrimination. Mass.Gen.Laws ch. 1263-66. 2A(e). Blumberg, De Facto G. § See also experimentation the context state presented variety were tistics solving prob- means for social and economic system jury operation “key man” lems”, J., at 502 selection, Anthony, supra (Murray, jury which allows commissioners dissenting), and considerations of federal- on which jurors Spanish select from a list require that an impermissible ism motive in identifiable, easily are and the surnames enacting legislation be not lightly in- system “susceptible is thus abuse”. 430 Note, Developments ferred. in the 497, 484-85, 495, 97 S.Ct. 1272. No Protection, Equal Law: Harv.L.Rev. State, presented by the evidence was and 1065, n.101; 1093-94, Bickel, A. The Least recognized Court there would the that be no 214; Brest, Dangerous Branch, P. Palmer v. the constitutional violation were State to Thompson : Approach An to the Problem explain the discrepancy numerical on neu- Motivation, Legislative of Unconstitutional above, grounds. out pointed tral As the 95, Sup.Ct.Rev. Inevitability 129-30. preference clearly explainable statute is as effect, with coupled disproportion- even having the purpose preferring veteran impact, pattern ate “absent a as stark as expense men and women at of non-vet- the in Gomillion or Yick Wo” is not evi- eran men and women. dence of intent.6 242, supra 426 at Ill 2040; Arlington supra 429 Heights, at principle The tort applied in and criminal 266, 97 legislature’s S.Ct. 555. A choice of actions, that an presumed actor is to intend preferring implies veterans invidious intent consequences the natural and foreseeable only appears if it with expected inconsistent deeds, must yield entirely his differ- and valid considerations.7 In most hiring ent considerations at work when a federal situations the scores of those certified would protection is addressing court chal- likely be very little different were the vet- lenge Principles to state legislation. of fed- preference erans’ not in effect.8 There is eralism involve a of the “recognition value here no legislature indication de- important point Judge Campbell’s An sistant, 6. applicants anal- the three certified of whom ysis following: is the chosen, 77.40, one would be 28, scores had 93.- sure, legislature To prefer- be did not wish to and 90.20. Without the veterans’ cutting-off ence, harm women. top But the of wom- three scores would have been en’s 94.88, 93.28, was an inevitable (plaintiff). concom- Agreed and 92.32 itant of the chosen scheme —as inevitable as (hereinafter “Statement”) Statement of Facts proposition up, that if tails heads must 12, 13, 2, position, Exhibits For another consequences be down. Where a law’s are Assistant, that of Administrative there were inevitable, they meaningfully can be de- positions persons seven available. Eleven scribed as unintended? certified, 9,¶ would be Statement and were the question to his Ante The answer must top interest, positions eleven all to indicate inevitability be of effect is relevant 88, group would be filled from a with scores of where it bears on to find and intent as 86, 86, 84, 94, 92, 92, 90, 90, and 90. With- that word is used in v. Davis one preference, out the selections would be Campbell Judge agrees must find motive. 94, 92, group from a with scores employment op- the harm “[w]hile to female 90, 90, 90, 111) and Statement and, portunities given is extensive position, Exhibit 7. For a third Assistant Sec- scheme, inevitable, it was this harm which Examiners, retary, top Board of Dental prompted passage of law . . Ante 89.72, 78.08, 83.64; three scores were with- here, Where, at n.*. a law’s conse- preference, top out the three scores would inevitable, quences were but there is no evi- 89.72, (plaintiff), have been 86.68 and 83.98. particular consequences at dence all that those !| 27, appointee Statement That they Exhibit 61. legislature, motivated the can indeed be position 78.08, for this had a score the low- described as unintended. certified, est of the three indicates that there Brest, supra, Sup.Ct.Rev. 7. See P. at 121— important qualifications are other besides test 122; Note, Reading the Mind of the School scores and thus that there is little reason to Segregative Board: intent the De quality employee pool believe that the Distinction, Facto/De Jure 86 Yale L.J. significantly by containing persons lowered 332—43 slightly lower test than scores applied positions plain- 8. For one present preference absent the veterans’ statute. tiff, that of Solomon Administrative Head As- enacting parted from usual considerations result of a statute intended to incidental extent, however, preference. To the reward veterans and not one intended to to use civil service wishes against discriminate men and women who veterans, any ef- hiring practices to favor veterans are not or those whose service impact to diminish the fort women military times of limited action. necessarily diluting preference results DuBois, Branch v. 1133.9 the benefit to veterans. in a diminution of The of the statute at issue here the hiring Because of this nature of bene- approach does not the extremes described in fit, “absolute” in- use of the Arlington supra 429 Heights, point preference, of a like the use of stead prove must all, any preference provides ground done. by other evidence. This she has not legislature’s motive. for indictment question: prefer- “Would the veterans’ ence statute have been enacted IV represented in were the armed services in preference such numbers that Since three veter discriminatory have effect?” has preference provisions ans’ have been sub by plaintiff, been addressed and she has jected equal protection challenge; all given absolutely the court no reason to an- upheld. three have been Bannerman v. question negative. swer this in the She has Dept. of Youth Authority, F.Supp. prima failed to make out a facie case of (N.D.Cal.1977); DuBois, Branch v. Healthy intent. Mt. (N.D.Ill.1976); State, F.Supp. 1128 Ballou v. City Doyle, Board of Ed. v. Dept. Service, N.J.Super. of Civil (1977). L.Ed.2d 471 aff'd, (App.Div.1977), A.2d 333 75 N.J. light Washington would not v. Davis I (1978). Three A.2d 1118 hold, does, majority as the Massa- distinguish Anthony decisions v. Common chusetts statute vio- Veterans’ Preference wealth, supra, having as been based on a lates the Equal Protection Clause stronger negative effect on women than respectfully Fourteenth Amendment. I dis- court, those courts faced. The California sent. however, approach states that used in Anthony “rejected Washington v. was

Davis", Bannerman, concluding

Each court had' little trouble

that no intent to harm women was present,

even in the “absolute” at issue Jersey.

in New The Illinois court’s language representative.

While those who never served in the arm- forces,

ed those who served at times not

within statutory periods and women

who are not veterans suffer a disadvan-

tage in hiring promotion, this is an agreed iting 9. This court in its would seem to have in enact- such was a motive opinion, majority that, course, legislation, earlier where the stated that ment of the precisely Judge what must be shown. All Tau- Massachusetts [t]he Veterans’ Preference say legislature’s is that “clear ro will disquali- was not enacted for the expense fying to benefit veterans even at the receiving ap- women civil service women”, pointments. says nothing ante at 146. This Massachusetts, entirely about and is with a v. Commonwealth of motive consistent finding legislature saw the opinion Judge extremely regrettable Nowhere in his has Tauro said but unavoida- the Massachusetts intended to ble. job opportunities harm for women or that lim-

Case Details

Case Name: Feeney v. Com. of Mass.

Court Name: District Court, D. Massachusetts

Date Published: May 3, 1978

Citation: 451 F. Supp. 143

Docket Number: Civ. A. 75-1991-T

Court Abbreviation: D. Mass.