Feeney v. Com. of Mass. , 451 F. Supp. 143 ( 1978 )

OPINION

TAURO, District Judge.

By order of remand from the Supreme Court, we have been instructed to reconsider our decision in Anthony v. Commonwealth,¹ 415 F.Supp. 485 (D.Mass.1976), in light of the Court’s subsequent decision in Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976).² After further briefing and oral argument, we conclude that Davis does not require us to alter our original holding. To the contrary, we have determined that both Davis and the Court’s later opinion in Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977), support our conclusion that the challenged Massachusetts Veterans’ Preference statute ³ deprives women of equal protection of the laws and, therefore, is unconstitutional.⁴

I

THE ANTHONY DECISION

The broad- issues in this case are treated extensively in our prior opinion. 415 F.Supp. 485. In order to put in context our reconsideration of Anthony, however, it is useful to outline briefly some of its major points.

The statutory scheme challenged in Anthony established a formula that permanently prevents a non-veteran from achieving a place on the civil service appointment list ahead of a veteran, regardless of comparative test scores.⁵ We pointed out that “(a)s a practical matter . . . the Veterans’ Preference replaces testing as the criterion for- determining which eligibles will be placed at the top of the list.” 415 F.Supp. at, 489.

The selection formula, geared as it is to veteran status, is necessarily controlled by federal military proscriptions limiting the eligibility of women for participation in the military. Long-standing federal policy limited to 2% the number of women who could participate in the armed forces. Anthony v. Commonwealth, supra, at 489. Traditionally, enlistment and appointment criteria have been more restrictive for women than for men.⁶ An inevitable consequence of this federal policy limiting women’s participation in the military is that only 2% of Massachusetts veterans are women. Id.

(T)he practical consequence of the operation of these federal military proscriptions, in combination with the Veterans’ Preference formula is inescapable. New women will ever become veterans so as to qualify for the preference; and so, few, if any, women will ever achieve a top position on a civil service eligibility list, for other than positions traditionally held by women.

Id. at 490.

We recognized that the prime legislative motive of the challenged statute, that of rewarding public service in the military, was worthy. Id. at 496. But we also observed that

(1) t is not enough that the prime objective of the Veterans’ Preference statute . is legitimate and rational. The means chosen by the state to achieve this objective must also be legitimate and rational.

Id. at 497.

We determined that the means chosen by the Massachusetts Legislature to reward veterans were not grounded “on a convincing factual rationale.” Id. at 495. We pointed out that the challenged statutory formula was not an effort by the state to set priorities for finite resources; that there were less drastic alternatives available to the state, such as a point system; and that any argument attempting to relate the challenged formula to job performance or qualification was “specious.” Id. at 495-499. We concluded that the formula relegated job-related criteria and professional qualifications to a secondary position. Id. at 497.

Moreover, we emphasized that the challenged preference was absolute and permanent. No time limit was imposed or attempt made “to tailor its use to those who have shortly returned to civilian life.” Id. at 499. Such a broad-brush approach may be administratively convenient, but mere administrative convenience is not a legitimate basis for benefiting one identifiable class at the expense of. another. Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971).

Although the Veterans’ Preference statute was not designed for the sole purpose of subordinating women, Anthony v. Commonwealth, supra, at 495, its clear intent was to benefit veterans even at the expense of women. As we stated.

(T)he formula’s impact, triggered by decades of restrictive federal enlistment regulations, makes the operation of the Veterans’ Preference in Massachusetts anything but an impartial, neutral policy of selection-, with merely an incidental effect on the opportunities for women.

Id. at 495.

Rather, we found the preference formula to be

a deliberate, conscious attempt on the part of the state to aid one clearly identifiable group of its citizens, those who qualify as veterans, ... at the absolute and permanent disadvantage of another clearly identifiable group, Massachusetts women.

Id. at 496.

The consequences of adopting a permanent absolute preference formula tied to federal enlistment restrictions were more than predictable, they were inevitable.

II

THE IMPACT OF DAVIS ON ANTHONY

At issue in Davis was a pre-employment literacy test used by the District of Columbia police department. The district court rejected plaintiffs’ allegation that the test was “culturally slanted” to favor whites. It determined further that the test was “reasonably and directly” related to the requirements of the police recruit training program, although unrelated to actual job performance. 426 U.S. at 235, 96 S.Ct. 2040. The D.C. Circuit reversed, holding irrelevant the failure of plaintiffs to allege and prove discriminatory intent in the exam’s design and administration. It determined that the disproportionate percentage of blacks who had failed the exam sufficed to establish a constitutional violation. Id. at 236-37, 96 S.Ct. 2040.

In reversing the court of appeals, the Supreme Court stated that claims of invidious discrimination under the fifth or fourteenth amendments require proof of a discriminatory purpose. A facially neutral statute may not be deemed vulnerable to equal protection challenge solely because it has a disproportionate impact. The Court emphasized that discriminatory intent need not be “express or appear on the face of the statute,” 426 U.S. at 241, 96 S.Ct. at 2048, but that consideration must be given to the totality- of the circumstances. Disproportionate impact is one such highly relevant circumstance we must consider.

Necessarily, an invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on one race than another. It is also not infrequently true that the discriminatory impact . . . may for all practical purposes demonstrate unconstitutionality because in various circumstances the discrimination is very difficult to explain on nonracial grounds. Nevertheless, we have not held that a law, neutral on its face and serving ends otherwise within the power of government to pursue, is invalid under the Equal Protection Clause simply because it may affect a greater proportion of one race than of another. Disproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination forbidden by the Constitution.

426 U.S. at 242, 96 S.Ct. at 2048. See also Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977). This point was amplified by Justice Stevens in his concurring opinion,

Frequently the most probative evidence of intent will be objective evidence of what actually happened rather than evidence describing the subjective state of mind of the actor. For normally the actor is presumed to have intended the natural consequences of his deeds. This is particularly true in the case of governmental action which is frequently the product of compromise, of collective decisionmaking, and of mixed motivation.

Id. at 252, 96 S.Ct. at 2054 (Stevens, J., concurring). See also Dayton Board of Education v. Brinkman, 433 U.S. 406, 97 S.Ct. 2766, 53 L.Ed.2d 851 (1977) (Stevens, J., concurring).

A major factor distinguishing Davis from the case at hand is the nature of the selection procedure challenged in each case. Although the plaintiffs in Davis originally challenged the entire District of Columbia police recruitment scheme, the sole issue before the Supreme Court was the validity of the written civil service test. Washington v. Davis, supra 426 U.S. at 233-35, 96 S.Ct. 2040.

The district court in Davis determined that the challenged test was neutral on its face. Id. at 235, 96 S.Ct. 2040. This determination apparently provided a basis for the Court’s statement that,

A rule that a statute designed to serve neutral ends is nevertheless invalid, absent compelling justification, if in practice it benefits or burdens one race more than another would be far-reaching and would raise serious questions about, and perhaps invalidate, a whole range of tax,' welfare, public service, regulatory, and licensing statutes that may be more burdensome to the poor and to the average black than to the more affluent white.

Id. at 248, 96 S.Ct. at 2051. (Footnotes omitted.)

The factual underpinning in this case is entirely different. As we have already emphasized, the Veterans’ Preference statute is “anything but an impartial, neutral policy of selection with merely an incidental effect on the opportunities for women.” 415 F.Supp. at 495. Here, plaintiff does not challenge the civil service written examination but, rather, the overriding ranking formula that mandates an absolute job preference to veterans over non-veterans, regardless of comparative test scores. This preference formula effectively “replaces testing as the criterion for determining which eligibles will be placed at the top of the list.” Id. at 489.

In analyzing the “totality of the relevant facts” so as to determine the legislative intent underlying the challenged statute, we must of necessity examine official acts or policies to determine whether they had the natural, foreseeable and inevitable effect of producing a discriminatory impact.⁷ See Washington v. Davis, supra, 426 U.S. at 253, 96 S.Ct. 2040 (Stevens, J., concurring); N.A.A.C.P. v. Lansing Board of Education, 559 F.2d 1042 (6th Cir. 1977).

The legislature was, at the least, chargeable with knowledge of the long-standing federal regulations limiting opportunities for women in the military,⁸ and the inevitable discriminatory consequences produced by their application to the challenged formula.⁹

In practical application, the combination of federal military enrollment regulations with the Veterans’ Preference is a one-two punch that absolutely and permanently forecloses, on average, 98% of this state’s women from obtaining significant civil service appointments.

Anthony v. Commonwealth, supra, at 498.

We must also assume that the legislature was cognizant of the fact that the stringent entry criteria embodied in the federal military regulations bore “no demonstrable relation to an individual’s fitness for civilian public service.” Id. at 498-99. We realize that a due process or equal protection claim is not to be judged by the standards applicable under Title VII. Washington v. Davis, supra, 426 U.S. at 239, 96 S.Ct. 2040. Our holding that the Massachusetts civil service selection process is unconstitutional is not based solely on the fact that it bears no relationship to job performance. But the fact that the criteria set forth in the challenged statutory formula fail to measure job performance is one additional circumstance bearing on the question of discriminatory intent.¹⁰

Finally, the statistical evidence presented by plaintiff demonstrates a pattern of exclusion of women from the civil service.¹¹ At the time the suit was filed, only 2% of Massachusetts veterans were women.¹² Although 43% of the civil service appointees were women, a large percentage of them served in lower grade positions for which men traditionally did not apply. Of the women appointed over a ten year period, from July 1, 1963 through June 30, 1973, only 1.8% were veterans, while 54% of the men had veteran status. 415 F.Supp. at 488.

The facts demonstrate that this absolute job preference formula had a devastating impact on the plaintiff’s attempts to advance her position in the civil service. In 1971, she received the second highest test score for the position of Assistant Secretary to the Board of Dental Examiners, but was ranked sixth on the list of eligibles, behind five male veterans, four of whom had received lower scores. She was not certified and a male veteran with a lower examination score was appointed.

Two years later when she applied for another administrative post, plaintiff received the third highest mark on the exam, but only ranked fourteenth on the list, behind twelve male veterans, eleven of whom had lower test scores. Again, plaintiff was not certified for appointment. The third time she applied for an administrative position, plaintiff received a score that would have placed her within the top twenty places on the eligibles list. By operation of the formula, however, she was ranked 70th on the list, behind 50 male veterans with lower test scores. Id. at 497-498.

These figures, and others cited in our earlier opinion,¹³ show a clear pattern of exclusion of women from competitive civil service positions. Unlike the defendants in Davis, the Commonwealth has not made any showing of affirmative efforts to recruit women, or of a recent rise in the percentage of women appointed to competitive civil service positions. In Davis the district court found that 44% of the new police recruits over the preceding three years had been black, a figure roughly approximating the proportion of blacks in the area. That court also found that the Department had “systematically and affirmatively sought to enroll black officers, many of whom passed the test but failed to report for duty.” 426 U.S. at 236, 96 S.Ct. at 2045.

The situation here is in marked contrast. The Commonwealth’s proffered 57-43 ratio of men to women is misleading. A large percentage of female appointees serve in lower grade permanent positions for which males traditionally have not applied. Some women received their appointments through a now defunct practice by which the appointing authorities would requisition only women applicants for certain jobs. 415 F.Supp. at 488.¹⁴ While the officials in Davis sought “systematically” to recruit minorities who had passed the preemployment test, the defendants here have demonstrated no attempt to mitigate the permanent and absolute impact on women of a formula that systematically excludes them from desirable public service positions even though they have demonstrated their qualifications by passing a written exam.¹⁵ The Commonwealth argues that,

historical analysis makes it clear that the enactment of this legislation by the General Court was in no way motivated by a desire to discriminate against women. Rather, the legislative motivations for Massachusetts Veterans’ Preference statutes were: (1) to reward those who have sacrificed in the service of their country; (2) to assist veterans in their readjustment to civilian life; and (3) to encourage patriotic service.

Brief for Defendants at 24, 25.

We disagree. It is clear that the Commonwealth’s motive was to benefit its veterans. Equally clear, however, is that its intent was to achieve that purpose by subordinating employment opportunities of its women. The course of action chosen by the Commonwealth had the inevitable consequence of discriminating against the women of this state. See Anthony v. Commonwealth, supra, at 496. The fact that the Commonwealth had a salutary motive does not justify its intention to realize that end by disadvantaging its women.

Davis does not require a plaintiff to prove that the challenged action rested solely on racially discriminatory purposes. Rarely can it be said that a legislature or administrative body operating under a broad mandate made a decision motivated solely by a single concern, or even that a particular purpose was the “dominant” or “primary” one.

Village of Arlington Heights v. Metropolitan Development Housing Corp., supra, 429 U.S. at 265, 97 S.Ct. at 563. (Footnotes omitted.)

The fact that there are less drastic alternatives available to the state to achieve its purpose of aiding veterans,¹⁶ underscores our conclusion that the absolute and permanent preference adopted by the Commonwealth resulted from improper evaluation of competing considerations. By intentionally sacrificing the career opportunities of its women in order to benefit veterans, the Commonwealth made a constitutionally impermissible value judgment.

We reaffirm our holding that the Massachusetts Veterans’ Preference Act denies equal protection under the law and, therefore, is unconstitutional.

1 . This case, originally entitled Anthony v. Commonwealth, was brought as two separate actions under 42 U.S.C. § 1983 by four Massachusetts women challenging the Veterans’ Preference stat.-te, Mass.Gen.Laws ch. 31, § 23. The plaintiffs in Anthony were three non-veteran women, admitted to the Massachusetts bar, who had applied for positions as counsel to state agencies. Plaintiff Feeney, in a separate suit, sought an administrative post in the civil service. The two suits were consolidated. We determined that the claims brought by the plaintiffs in Anthony were rendered moot by passage in April, 1975 of Mass.Gen.Laws ch. 31, § 5, which removed all appointments for state and municipal legal positions from the provisions of the state civil service law. We considered plaintiff Feeney’s claim on the merits. Our decision in the Feeney case is the subject of the court’s remand order presently before us.

2 . Also before the court is plaintiffs motion to amend the complaint to add a cause of action challenging the Veterans’ Preference Act as violative of the Equal Rights Amendment to the state constitution, ratified in November, 1976, several months after our original opinion had issued. Plaintiff’s motion raises several important issues, namely whether an amendment to the complaint would be within the scope of the Court’s order of remand, whether the doctrine of abstention would require us to certify plaintiff’s claim to the Massachusetts Supreme Judicial Court, and whether we would be obliged to consider the state claim prior to reaching the federal constitutional issue in this case.

Plaintiff asserts as a basis for the motion that, in the event her federal claims are rejected, she may be estopped from bringing a separate suit based on the state claim. At oral argument, however, the Commonwealth stipulated that it would not seek to raise the defense of estoppel with respect to plaintiffs state claim should there be a subsequent proceeding in the state court. Having in mind the Commonwealth’s stipulation, we deny plaintiff’s motion to amend. Fed.R.Civ.P. 15(a).

3 . Mass.Gen.Laws ch. 31, § 23.

4 . In Anthony, we enjoined enforcement of the Massachusetts Veterans’ Preference statute, Mass.Gen.Laws ch. 31, § 23, because it deprived women of equal protection under the law. The state subsequently filed a motion for relief from judgment, urging reconsideration in light of Davis. That motion, along with a motion for relief from judgment pursuant to Fed. R.Civ.P. 60(b)(6), was denied, although a stay pending appeal was granted. The stay was rendered moot by the passage of an interim statute, Stat.1976, c. 200, which suspends operation of the challenged statute pending the outcome of this case on appeal. The interim statute is presently in effect and provides a modified point preference for veterans.

5 . An applicant who passes the civil service written examination becomes an eligible and is placed o'n an “eligible list” under the following ranking formula:

1. Disabled veterans in order of their composite scores.

2. Other veterans in order of their composite scores.

3. Widows and widowed mothers of veterans in order of their composite scores.

4. All other eligibles in order of their composite scores.

Mass.Gen.Laws ch. 31, § 23; Anthony v. Commonwealth, 415 F.Supp. 485, 488 (D.Mass. 1976).

The full statutory procedure by which eligible applicants are certified and selected is set forth in our original opinion. 415 F.Supp. at 488-90.

6 . A complete summary of the limitations placed on women seeking entry into the armed forces is set forth in our earlier opinion. 415 F.Supp. at 489-90.

7 . Defendants assert that a “foreseeability test” violates the mandate in Davis. Specifically, defendants rely on the Court’s remand in Austin Independent School District v. United States, 429 U.S. 990, 97 S.Ct. 517, 50 L.Ed.2d 603 (1977), for the proposition that “inferences about intent flowing from arguably foreseeable consequences is not a substitute” for inquiry into specific intent. Defendants’ Reply Brief at 7.

An order of remand is ambiguous in import. Justice Powell’s concurrence suggests the remand in Austin may have been prompted by the breadth of the remedial relief ordered. 429 U.S. at 991, 992, 97 S.Ct. 517. See also School District of Omaha v. United States, 433 U.S. 667, 97 S.Ct. 2905, 53 L.Ed.2d 1039 (1977); Dayton Board of Education v. Brinkman, 433 U.S. 406, 97 S.Ct. 2766, 53 L.Ed.2d 851 (1977). We will not presume that the Court utilized a remand order in Austin to abrogate the basic precept that a person is deemed to intend the natural, probable and foreseeable consequences of his actions. Nothing in Davis would indicate rejection in equal protection cases of this long-standing principle. See Arthur v. Nyquist, 429 F.Supp. 206, 210 (W.D.N.Y. 1977). Indeed, the Court recognized the difficulty of direct proof of intent, stating that the discriminatory purpose need not be express or appear on the face of the statute. 426 U.S. at 241, 96 S.Ct. 2040. Moreover, Justice Stevens’ concurrence suggests that this precept has continued vitality. Id. at 253, 96 S.Ct. 2040 (Stevens, J., concurring).

Defendants cite two cases where the “foreseeability test” was considered and rejected. United States v. City of Chicago, 549 F.2d 415 (7th Cir. 1977); Guardians Ass’n of the New York City Police Dep’t v. Civil Service Comm’n, 431 F.Supp. 526 (S.D.N.Y.1977). These cases are clearly distinguishable. In both, the challenged procedures were found to be neutral. Here, we have determined the challenged statutory scheme to be “anything but an impartial, neutral policy of selection.” 415 F.Supp. at 495.

We do not hold that in all cases a plaintiff may attempt to circumvent the intent requirement of Davis solely by presenting proof of foreseeability of impact. We are dealing here with a statute that is not facially neutral. Moreover, it has an inevitable discriminatory impact on a clearly identifiable class. These are relevant factors to consider in determining underlying legislative intent.

8 . See Anthony v. Commonwealth, 415 F.Supp. 485, 489-90 (D.Mass.1976).

9 . The legislative history does suggest an awareness on the part of the lawmakers of the predictable discriminatory impact the preference formula would have on women. Until 1971, most of the veterans’ preference statutes and civil service regulations included provisions approving the practice of requisitioning only female applicants for certain positions. Jobs for which women were requisitioned were exempted from operation of the statute. See Mass. Gen.Laws ch. 31, § 23 (1966); Acts 1922, ch. 463; Acts 1919, ch. 150, § 2; Acts 1895, ch. 501, § 2. Although the 1895 statute on its face appears to exempt women from the operation of the veterans’ preference with respect to all available jobs, the prior and subsequent legislative history suggest that the statutory language was merely consistent with the pre-existing rule permitting single sex lists. See Civil Service Rule XIX(3) promulgated pursuant to Stat. 1884, ch. 320. If a request were made for a female applicant, the Commissioner had no authority to certify a male for the position, regardless of his veteran status. Op.Att’y Gen. 68 (1941). In 1971, the legislature repealed this statutory exemption. Acts 1971, ch. 219.

Statistics show that the exemption operated only to preserve stereotypically “female” clerical jobs for women. See 415 F.Supp. at 488. Contrary to defendants’ assertion, elimination of this exception did not remove the last vestiges of sex discrimination from the statutory scheme; it only served to make all positions in the civil service subject to the overriding preference formula. See Comment, Veterans’ Public Employment Preference as Sex Discrimination, 90 Harv.L.Rev. 805, 812 (1977); Fleming and Shanor, Veterans’ Preferences in Public Employment: Unconstitutional Gender Discrimination?, 26 Emory L.J. 13, 53 (1977).

10 . It is significant to note that the Court in Davis adopted the finding of the district court that the challenged test “directly related to the requirements of the police training program.” 426 U.S. at 235, 96 S.Ct. at 2045.

11 . Plaintiff argues that this statistical presentation of itself creates a presumption of purposeful discrimination, thereby shifting the burden of proof to defendants. See Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977); Washington v. Davis, 426 U.S. 229, 241, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). In view of our subsidiary and ultimate findings and conclusions, based on an uncontradicted record, concerning the existence of discriminatory intent, we conclude that plaintiff has met her burden of proof without the benefit of a presumption and, therefore, find it unnecessary to address this procedural issue.

12 . At oral argument the parties stated that there is no reason to revise the agreed statement of facts submitted in Anthony.

Moreover, there is no reason to assume that the facts have changed measurably, inasmuch as the challenged statute has not been in effect due to passage of the interim point preference statute. See n. 2, supra.

13 . See 415 F.Supp. at 488, 491-92, 497-98.

14 . See n. 10, supra.

15 . We recognize that “(m)ere absence of recruitment efforts, by itself is not equivalent to an intent to discriminate,” Guardians Assoc. of the New York City Police Dept. v. Civil Service Comm'n, 431 F.Supp. 526, 535 (S.D.N.Y.1977). We emphasize that our finding of discriminatory intent is not based solely on the Commonwealth’s failure to show affirmative efforts to recruit women. This is merely one of the factors we rely on in considering the totality of the circumstances.

16 . Anthony v. Commonwealth, 415 F.Supp. 485, 499 (D.Mass.1976).