Costa v. Markey

706 F.2d 1, 30 Fair Empl. Prac. Cas. (BNA) 593, 1982 U.S. App. LEXIS 23588, 32 Empl. Prac. Dec. (CCH) 33,622
CourtCourt of Appeals for the First Circuit
DecidedDecember 3, 1982
DocketNo. 81-1361
StatusPublished
Cited by20 cases

This text of 706 F.2d 1 (Costa v. Markey) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Costa v. Markey, 706 F.2d 1, 30 Fair Empl. Prac. Cas. (BNA) 593, 1982 U.S. App. LEXIS 23588, 32 Empl. Prac. Dec. (CCH) 33,622 (1st Cir. 1982).

Opinions

BOWNES, Circuit Judge.

We granted the plaintiff’s petition for a rehearing to examine the effect on this case of the Supreme Court’s decision in Connecticut v. Teal, 457 U.S. 440, 102 S.Ct. 2525, 73 L.Ed.2d 130 (1982). Because we find that Teal mandates a reversal of our prior opinion, we restate the relevant facts.

The New Bedford Police Department makes appointments for police officers from a list of eligible applicants that is certified to it by the state civil service personnel division. The lists at issue in this case were derived from a 1972 written examination for the position of police officer. Applicants’ names appear on the list in order of their scores on the exam, adjusted for various statutory and court-ordered preferences. Plaintiff took the 1972 examination and was notified in 1973 that her score was 93.3 percent. She passed the city’s physical fitness examination in May 1974.

Prior to February 1974 New Bedford had two distinct police categories: males were police officers and females were police women. Male applicants were ineligible for positions as police officers if they failed to meet a minimum height requirement of five feet six inches. In February 1974 the city abandoned these separate job categories, and thereafter both men and women competed for positions as police officers. Women applicants were also required to meet the five feet six-inch height minimum.

[3]*3In March 1974 a woman police officer retired. Because the city needed a female officer to perform special duties, related,, for example, to female prisoners, it sought special permission from state authorities to engage in sex-specific hiring using a list of female applicants already certified for Taunton, Massachusetts. The ■ Massachusetts Commission Against Discrimination authorized New Bedford’s use of the Taun-ton list, but the state Division of Civil Service never certified the list to New Bedford.

The Division of Civil Service supplied New Bedford with an integrated list of male and female applicants on July 30, 1974, that was derived from the 1972 examination. Plaintiff’s name was mistakenly omitted from this list, but was included on August 7, 1974, after the city was notified of the error. Her name, however, was incorrectly placed higher on the list than it should have been.1 This error was corrected, but not until February 1975, well after the allegedly discriminatory acts occurred.

In August 1974 plaintiff was interviewed for a position as a police officer in New Bedford, but was rejected because she failed to meet the five feet six-inch height requirement. If her name had appeared in the correct place on the July 30 list, she would not have, received the interview. Thus, application of the height requirement prevented plaintiff from obtaining a job as a police officer for which she was not eligible under the civil service requirements.

After an additional female police officer retired and use of the July 30 list did not result in the hiring of any women, New Bedford sought and received approval to hire from a list dated August 12, 1974. This list was derived from the July 30 list, but contained only the names of the female applicants. Plaintiff’s name correctly appeared first on this list. Plaintiff, however, was again rejected because she failed to meet the height requirement. Two women who placed third and fourth on the list satisfied the height requirement and were appointed to positions as police officers. The woman appearing second on the list was also disqualified because of the height requirement.

Plaintiff brought suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, using a disparate impact theory of discrimination. Plaintiff alleged that-New Bedford’s use of the height requirement discriminated against her on two separate occasions: once, when the integrated list was used, and again, when the female-only list was used. We start with the integrated list. Plaintiff produced undisputed evidence that eighty percent of the male population is at least five feet six inches tall, while less than twenty percent of the female population reaches this height. The city defended on the basis of the incorrect placement of plaintiff’s name on the applicant list for police officers. The district court held that, although plaintiff was deprived only of an “invalid appointment” as a police officer, the defendants nonetheless had violated Title VII. The court denied plaintiff back pay, but issued a declaratory judgment in her favor. Neither party appealed this judgment.

As to the female-only list, the district court held that the second application of the height requirement also violated plaintiff’s rights under Title VII and entitled her to back pay and other relief. The defendants appealed, and we reversed.

In our decision we concluded that because the height requirement was applied to women only there could be no disparate effect on women and hence no prima facie case of disparate impact discrimination. In so doing we rejected plaintiff’s argument, which relied primarily on the Second Circuit’s opinion in Teal v. Connecticut, 645 F.2d 133 (2d Cir.1981), aff’d, 457 U.S. 440, 102 S.Ct. 2525, 73 L.Ed.2d 130 (1982), that the height requirement was one component of a selection process that excluded eighty percent of all women applicants and that this alone violated Title VII even though [4]*4the overall result of the selection process was not objectionable. We explicitly declined to follow the Second Circuit’s approach in Teal, and the Supreme Courtis subsequent affirmance of Teal made this reconsideration necessary.

In Connecticut v. Teal, 457 U.S. 440, 102 S.Ct. 2525, 73 L.Ed.2d 130 (1982), the Supreme Court considered “whether an employer sued for a violation of Title VII of the Civil Rights Act of 1964 may assert a ‘bottom line’ theory of. defense.” Id. at 442, 102 S.Ct. at 2528. Under such a theory, an employer using an employment criterion that has an adverse impact on a group protected by Title VII can defend on the ground that the adverse impact is offset by other measures and the final result is an appropriately balanced work force. The Court held “that the ‘bottom line’ does not preclude [a plaintiff] from establishing a prima facie case, nor does it provide [an employer] with a defense to such a case.” Id. at 442, 102 S.Ct. at 2529.

In Teal, the plaintiffs, four black employees of the Department of Income Maintenance of Connecticut, sought to upgrade their positions from provisional to permanent Welfare Eligibility Supervisors. The first step in the promotion process was attainment of a passing score on a written examination. Failure of this test precluded an applicant from further consideration for promotion. Passing the test meant that the applicant moved on to later stages of the selection process in which the employer considered various other criteria, such as past work performance and recommendations of supervisors. Plaintiffs failed the written exam and brought suit alleging a violation of Title VII.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Smith v. City of Boston
D. Massachusetts, 2020
Bennett v. Capitol BC Restaurants, LLC
54 F. Supp. 3d 139 (D. Massachusetts, 2014)
Hernández-Mejías v. General Electric
428 F. Supp. 2d 4 (D. Puerto Rico, 2005)
Camacho v. Sears, Roebuck De Puerto Rico
939 F. Supp. 113 (D. Puerto Rico, 1996)
Mitchell v. Jones Truck Lines, Inc.
754 F. Supp. 584 (W.D. Tennessee, 1990)
Woodley v. Town of Nantucket
645 F. Supp. 1365 (D. Massachusetts, 1986)
Thomas v. City of Evanston
610 F. Supp. 422 (N.D. Illinois, 1985)
Tranquilli v. Irshad
454 N.E.2d 377 (Appellate Court of Illinois, 1983)
Coburn v. Browning Arms Co.
565 F. Supp. 742 (W.D. Louisiana, 1983)
Burney v. City of Pawtucket
563 F. Supp. 1088 (D. Rhode Island, 1983)
Costa v. Markey
706 F.2d 1 (First Circuit, 1982)

Cite This Page — Counsel Stack

Bluebook (online)
706 F.2d 1, 30 Fair Empl. Prac. Cas. (BNA) 593, 1982 U.S. App. LEXIS 23588, 32 Empl. Prac. Dec. (CCH) 33,622, Counsel Stack Legal Research, https://law.counselstack.com/opinion/costa-v-markey-ca1-1982.