WORCESTER – A Worcester Superior Court judge this month overturned a scathing decision of the Massachusetts Commission Against Discrimination that found the city discriminated against minority officers seeking promotions.
The decision – the latest in a 20-plus year legal battle in multiple venues - means that the two black officers who filed suit might walk away with nothing despite a 2015 MCAD ruling that awarded them a substantial amount of back pay.
“We think (there’s) a flaw in the judge’s decision,” Benjamin J. Weber, one of the officers’ lawyers, said Monday, vowing to appeal to the Supreme Judicial Court.
Asked for an interview Tuesday, City Manager Edward M. Augustus Jr. released a statement noting that the ruling supports the city’s longstanding position that no bias occurred.
MCAD did not respond to a request for comment.
The case dates to 1994, when officers Spencer Tatum and Andrew Harris filed a complaint with MCAD alleging they were passed over for sergeant promotions as a result of a racially-biased system.
The city uses the state civil service exam to promote officers. The officers at the time argued that since no officer of color had ever scored high enough to warrant a promotion, use of the state test was effectively discriminatory.
The city argued the claim was baseless, noting officers were promoted in the order of their scores; critics of the state test argue cities should use other methods because they've known for decades that minority officers tend to score lower.
The issue is one that has been taken up in multiple courts in recent years. In a 2014 ruling, U.S. District Court Judge George A. O’Toole Jr. found for the city of Boston in a similar case, and it’s that ruling that led to the most recent turn of the tide against the Worcester officers.
Judge O’Toole’s ruling pertained to a case, Lopez vs. the City of Lawrence, to which Mr. Tatum was added as a plaintiff in 2008. Consequently, Worcester was named a defendant.
In that case, the federal judge ruled the claim against Worcester and several other cities could not go forward because the sample sizes of minority officers allegedly affected were not statistically significant enough to establish a pattern.
Judge O’Toole did find that the sample size of officers in Boston was large enough – and that minority officers were adversely affected - but opined that the city’s actions were valid. Mr. Weber, also the lawyer in that case, appealed to the U.S. Court of Appeals for the First Circuit, which upheld the ruling.
“Clearly, this matter has been litigated fully multiple times in multiple forums, with the same result; the city has prevailed,” Worcester Superior Court Judge J. Gavin Reardon Jr. wrote in his eight-page Jan. 10 ruling in favor of Worcester.
The 2015 MCAD decision Judge Reardon overturned was sharply critical of Worcester. It found the city had ignored an agreement it forged with MCAD in 1988 to promote minority officers with lower scores over three years, and also accused it of making omissions in testimony to MCAD that could have changed the result of the case.
Former police chief Edward P. Gardella disputed those charges in a 2015 interview.
The 2015 MCAD ruling ordered Worcester to promote Officer Tatum, who was still with the force, to sergeant and to give both men back pay estimated to top $1 million apiece. The city appealed to Worcester Superior Court and did not promote Officer Tatum, who has since retired.
“The lawsuit ends up lasting longer than their careers - that’s the real tragedy of it,” said Mr. Weber, who intends to appeal the case to the Supreme Judicial Court.
Mr. Weber believes Judge Reardon erred in ruling that the Worcester officers’ case has already effectively been adjudicated. He noted that the Boston case, though similar, concerns two different tests more than a decade apart, and that expert testimony in that case was specific to Boston, not Worcester.
Mr. Weber further noted that a competing decision by a different federal judge on the issue has yet to be settled. In a November 2015 ruling on another of Mr. Weber’s cases – that of Boston police sergeants who alleged the city’s exam for lieutenant fostered a discriminatory result – U.S. District Court Judge William G. Young found for the sergeants.
Judge Young’s 82-page decision concludes the Boston test gave too much weight to multiple-choice questions that he opined served as a poor barometer of the skills needed for the job.
Judge Young noted that although there appears consensus that the multiple-choice test adversely affects minority takers, there is not consensus on exactly why that is.
“Without wading into social-scientific debates, the Court agrees with (one expert witness) that there are likely several factors driving this disparity,” he wrote, including legacies from historical discrimination and economic inequality.
“Whatever the causes, the so-called ‘achievement gap’ is real,” the judge added. “That it is an uncomfortable truth does not rob it of its current empirical foundation.”
Judge Young was asked to reconsider his decision in light of the appellate court’s affirmation of Judge O’Toole’s opinion. In August, Judge Young declined to change his decision, and the matter is awaiting review from the U.S. Appeals Court for the First Circuit.
Despite the fact that the appellate court affirmed Judge O’Toole’s ruling, Mr. Weber said he’s optimistic about the chances of Judge Young’s ruling being affirmed, too. He said that’s because while Judge O'Toole credited the city's experts in his case, Judge Young in his case credited the officers' experts – judgment calls, he said, that appellate courts are less likely to overturn than black-letter law.
Judge Reardon in his decision acknowledged Judge Young’s competing ruling, but decided the appellate court’s ruling in Lopez was clear enough.
“I have been following the docket in (the Judge Young case) in the hope that it would provide a congruent ruling to the decision (in) Lopez but have determined that additional guidance is not required and further delay is not warranted,” Judge Reardon wrote.
As for the ruling in the Lopez case, that is final, as the U.S. Supreme Court declined to take up the case.
Mr. Harris, 61, who retired in 2013 after 33 years on the force, said that while he’s disappointed with Judge Reardon’s ruling, he’ll keep fighting.
Mr. Harris said while some people might see him as seeking “something for nothing,” all he ever wanted was to be promoted to a job he believed he was qualified to do.
“As long as I can keep fighting this, I’m going to keep fighting it, because I know that I’m right,” he said.
Mr. Harris said Mr. Augustus made a settlement offer in the case a couple of years ago, but that it was “far less” than what he and Mr. Tatum believed they were due.
Mr. Harris believes the test – about 80 percent of which was based on the multiple-choice answers – was discriminatory because many people of color, particularly decades ago, did not have as many opportunities at quality education or post-high school studies.
“I was born and raised in Alabama, OK? What kind of education would I get down there?” he asked rhetorically, adding it was his street smarts that qualified him for the job.
“Street knowledge is what’s good for a police officer,” Mr. Harris said. “I can walk in and defuse something a lot faster than some guy with a college degree.”
In his statement Wednesday, Mr. Augustus noted that Judge Reardon's decision affirms the original ruling an MCAD hearing officer made in 2002. He said it supports the city’s view that it “relied on a valid selection tool that is used statewide, following typical civil service procedures to make an unbiased promotional decision.
“Despite many attempts by the city to resolve this matter amicably, through meetings with the officers, with mediators, and with stakeholders in the community, ultimately there was no choice but to allow the court to decide,” he wrote.
According to data provided by Worcester police Tuesday, the department has 364 rank-and-file police officers, 54 of whom are Hispanic, 25 of whom are black and three of whom are Asian.
Of the department’s 91 superior officers, five are black, three are Hispanic and none is Asian.
Accordingly, 23 percent of officers are black, Hispanic or Asian, while 9 percent of supervisors are black, Hispanic or Asian.
Asked for comment Tuesday on the department’s current promotional practices, a spokesman said Police Chief Steven M. Sargent was unavailable.
The most recent census figures estimate the city population as 70 percent white, 14 percent black, 21 percent Hispanic or Latino and 7 percent Asian.