Case: Lopez v. Massachusetts Division of Human Resources

In this class action lawsuit filed in Suffolk County Superior Court, several minority police officers employed throughout Massachusetts claimed that the Massachusetts Human Resources Division (HRD) engaged in unlawful disparate impact discrimination under state law in its administration of promotional exams for police sergeants.  This case followed a separate lawsuit ((Lopez v. Lawrence, U.S. Dist. Ct., No. 07-11693 (D. Mass. September 5, 2014), aff'd, 823 F.3d 102 (1st Cir. 2016), cert. denied, 137 S. Ct. 1088 (2017)) (“Lopez I”)) filed in Massachusetts federal court in 2007, where several African-American and Hispanic police officers employed by the Cities of Methuen and Lawrence, Massachusetts brought similar allegations under Title VII of the Civil Rights Act of 1994 and sought injunctive and declaratory relief, but did not seek certification of a class action on behalf of all minority police officers in the state of Massachusetts who were subject to the exam.  

Lopez I: 

In Lopez I, several minority police officers sued  the Massachusetts Human Resources Division (HRD), the HRD’s chief executive in his official capacity and the officers’ employers (various municipalities and the Massachusetts Bay Transportation Authority (MBTA)) in the U.S. District Court for the District of Massachusetts.  The officers brought a disparate impact claim under Title VII of the Civil Rights Act of 1964, specifically alleging that the HRD-administered promotional exams had an impermissible disparate impact on the promotion of minorities by their employers and lacked a job-related purpose.  They also brought claims under Massachusetts state law, and sought declaratory and injunctive relief to address the effects of the examinations on past discrimination, in addition to compensatory damages, including backpay, and attorneys’ fees.  

The state defendants (HRD and its chief executive) moved to dismiss and for summary judgment in the alternative, arguing that Title VII abrogates a state’s sovereign immunity under the Eleventh Amendment of the U.S. Constitution only when the state functions as an employer.  Since the officers were employed by the municipalities and MBTA, rather than the HRD,  the state defendants contended that they remained immune from suit.  The district court judge denied their motion.  On interlocutory appeal, however, the U.S. Court of Appeals for the First Circuit reversed, holding that the HRD was not the officers’ employer under Title VII.  588 F.3d 69.  Accordingly, the state defendants were dismissed as defendants and, on remand, that case proceeded to go to trial against the municipalities and the MBTA.  The District Court determined after a bench trial that the examinations were nevertheless job-related for the position in question and consistent with business necessity; and that the plaintiffs failed to prove that Boston had refused to adopt an alternative employment practice that would have equally or better served its business needs with less disparate impact.  2014 WL 12978866.  The First Circuit affirmed this judgment.  823 F.3d 102.  

Lopez II: 

In response, on February 11, 2009, the officers filed this class action lawsuit on behalf of all African-American and Hispanic police officers who are subject to a Massachusetts civil service law against the Commonwealth of Massachusetts and the HRD in Suffolk County Superior Court.  They claimed that the HRD engaged in discrimination by administering an examination for promotion to the position of police sergeant that had an adverse and discriminatory impact on minority candidates and were not valid predictors of job performance, in violation of several state laws.  The officers alleged that their municipal employers relied on their ranking by exam results, causing them to be denied promotional opportunities unlike their nonminority counterparts.  As a result, they contended, there is a substantial disparity between the number of minority police sergeants and entry-level police officers.  The case was assigned to Associate Justice Thomas E. Connolly.  

In July 2010, the defendants moved to dismiss the case for lack of jurisdiction on the basis of the state’s sovereign immunity and, in the alternative, for failure to state a claim.  On January 10, 2011, Judge Connolly granted their motion to dismiss on both grounds, without issuing an opinion.  

The officers filed an application for direct appellate review to the Supreme Judicial Court of Massachusetts, which was granted on June 23, 2011.  Writing for the court, Associate Justice Fernande R. V. Duffly reversed the trial court’s decision on November 9, 2012.  463 Mass. 696.  Justice Duffly found that the state and HRD did not have sovereign immunity from the police officers’ claims because the statute prohibiting racial discrimination expressly permitted suit against the state and its agencies.  She further  determined that the officers’ claim under the statute prohibiting discrimination in terms or conditions by an employer was properly dismissed because neither the state nor the HRD were the officers’ employers; since  the officers’ employers, the municipalities and MBTA, were not obliged to rely on the examination when making promotional decisions, Judge Duffly held that they were also not liable.  She also held that their claim for aiding and abetting a violation of the statute prohibiting unlawful discrimination was correctly dismissed because the officers did not allege that the municipalities who employed police officers committed distinct underlying acts of discriminationIn contrast, Judge Duffly found that the officers sufficiently alleged that the HRD interfered with their exercise of the right to be free from discrimination in employment because this claim could be established by evidence of disparate impact, and did not require a direct employment relationship.  Pursuant to her order, the case was remanded to the Suffolk County Superior Court.  

On September 18, 2013, the court denied the motion by defendants to stay the state court proceedings pending resolution of the parallel federal action, and granted plaintiffs’ motion for class certification for liability purposes only, subject to further consideration if the action reached the stage of remedy.  The parties proceeded to engage in discovery for two years, during which the plaintiffs filed an amended complaint on February 7, 2014.  The parties subsequently filed a joint motion to stay the state court proceedings pending resolution of the parallel federal action, however, on April 2, 2015.  The court granted this motion on April 9, 2015, staying all proceedings until December 1, 2015.  Subsequently, however, the court granted several joint motions by the parties to stay the proceedings.  

On June 27, 2018, the defendants moved for judgment on the pleadings, contending that the plaintiffs’ discrimination claim was barred under the doctrine of issue preclusion because of the prior decision in the parallel federal action dismissing the plaintiffs’ claims under Massachusetts state law.  Judge Robert N. Tochtka of Suffolk County Superior Court granted their motion on January 7, 2019. 

The plaintiffs appealed to the Appeals Court of the Commonwealth of Massachusetts.  On July 22, 2020, the panel for the Appeals Court – composed of Associate Justice Mary T. Sullivan, Associate Justice C. Jeffrey Kinder and Associate Justice Sabita Singh – reversed, finding that the application of the issue preclusion doctrine was inappropriate with respect to the plaintiffs’ interference claim.  

On remand, the case was reassigned to Associate Justice of the Superior Court Douglas H. Wilkins on August 3, 2021.  Before Justice Wilkins, the parties continued to engage in discovery.  The case went to a jury-waived trial limited to liability, which was held in June, July and September of 2022.  Justice Wilkins issued a lengthy opinion with respect to liability on October 27, 2022 in which he found that the “[o]verwhelmingly persuasive evidence prove[d] that HRD interfered with the class members’ rights to consideration for promotion to police sergeant without regard to race or national origin,'' in violation of Massachusetts law.  On November 3, 2022, Justice Wilkins ordered the parties to exchange proposals regarding injunctive relief and damages.  The case is set to proceed to a bench trial with respect to remedies on March 6, 2023, and remains ongoing.