Riffelmacher v. Board of Police Commissioners

535 N.E.2d 1280, 27 Mass. App. Ct. 159, 1989 Mass. App. LEXIS 159
CourtMassachusetts Appeals Court
DecidedMarch 24, 1989
DocketNo. 88-P-224
StatusPublished
Cited by5 cases

This text of 535 N.E.2d 1280 (Riffelmacher v. Board of Police Commissioners) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Riffelmacher v. Board of Police Commissioners, 535 N.E.2d 1280, 27 Mass. App. Ct. 159, 1989 Mass. App. LEXIS 159 (Mass. Ct. App. 1989).

Opinion

Kaplan, J.

The plaintiff, Mary K. Riffelmacher, sued the board of police commissioners of Springfield alleging that, in bypassing her for appointment as a permanent full-time police officer, the board, the appointing authority, had discriminated against her by reason of her sex in violation of G. L. c. 151B, § 4(1).2 The action came to trial, a jury answered special questions in her favor,3 and she has a judgment for damages (amount stipulated) and attorney’s fees (see G. L. c. 151B, § 9). The defendants appeal claiming that the judge erred in declining to direct a verdict. We agree, in substance, with the plaintiff’s contentions and her analysis of the facts and hold that the judge’s ruling was correct. We mention also a question arising upon the judge’s exclusion of testimony by a psychologist.

In addition to certain documentary materials, the plaintiff’s case consisted of her testimony and testimony by two of a quorum of three commissioners (out of a board of five) who acted in her case and were called as adverse witnesses. These were Edward Keating (chairman of the board at the time of trial), and Samuel Marsella; Peter F. Carando, Jr., was not called. The defendants cross-examined the witnesses but, after offering and being denied the psychologist, they did not put in a case on their own behalf.

We sketch some basic facts (point I) and then deal with the record that bears more particularly on the issue of sex discrimination (point II).

I. In early 1977, the plaintiff applied to become an auxiliary police officer and was accepted after being interviewed by [161]*161police officials. She attended classes at the police academy over a period of six months, studying law enforcement, self-defense, weapons handling, and cardia-pulmonary resuscitation. Then in Fall, 1977, she “went out on the street,” that is, walked foot patrol, including night patrol. She carried a nightstick and a gun and had power of arrest. She worked in all parts of the city, answered “911” emergency calls, and joined a “K-9” unit with a regular officer. She described her participation in a drug raid and in quelling a disturbance in which weapons were displayed and confiscated.

While an auxiliary officer, the plaintiff took the State civil service test for regular police officer and passed it. She complied with other statutory eligibility requirements: she was between the ages of nineteen and thirty-two (she was thirty-one), had graduated from high school, and qualified physically. See G. L. c. 31, §§ 58, 61A.

In 1980, Springfield had nineteen regular slots to be filled, and the State Division of Personnel Administration (DPA) certified a list of forty-one qualified candidates. Of these, twenty, including the plaintiff, expressed interest and wanted to be considered. The plaintiff ranked fifteenth of the twenty on the civil service list (taking any veterans’ preferences into account). Fifteen were men and five women. The final hurdle for the candidates was an interview conducted by members of the board.4

As will be mentioned below (point IIC), the interviews were open-ended and unstructured. Since the conversations were not recorded (and it appears the members did not take notes), what occurred at the plaintiff’s interview had to be reconstructed from the testimony above mentioned. The interview ran for fifteen or twenty minutes. Evidently the plaintiff was asked questions about her duties as an auxiliary (she had served for two years or more at the time),5 whether her husband [162]*162approved her becoming a permanent officer and how he felt about her working a midnight shift, and how she proposed to take care of her two children (then aged about five and seven) when she was at work.

As noted, the plaintiff was bypassed, receiving notice of rejection on July 17, 1980. Fourteen men were appointed, including four who were below the plaintiff on the civil service list, and one woman, also below the plaintiff. The board’s expressed reason for bypassing the plaintiff, as reported to DPA, was that she was “an introvert.”6

II. The jury could find preponderant evidence of discrimination by the board in the following facts and circumstances: A, disparate treatment of the plaintiff and other women applicants in relation to male applicants; B, use of invidious standards expressly stated; C, uncontrolled subjectivity of the process. The jury could find that the reason assigned for bypassing the plaintiff was a pretext, that is, not the truly actuating reason.

A. Disparate treatment of the candidates is one of the factors leading to a conclusion that were the plaintiff a man, she would likely have been appointed.

(1) Both commissioners testified that prior experience of the candidates in police-related work was not a controlling factor in appointment, but there is considerable evidence that it was controlling for male candidates. Thus the reports on six successful male candidates (Delaney, Halpy, Hickson, Jacobson, McQuade, Moylan) stated that the selections were “due to” such experience (as police cadet, park ranger, auxiliary police officer).7 The plaintiff’s experience did not avail.

[163]*163(2) As to one woman who was rejected, the report noted her “long record of different employment,” and as to another bypassed woman, “her poor work record” of “numerous positions.” But, as shown on their applications, one appointed male had thirteen jobs in six years (Hickson), a second was disciplined in prior employment (Moylan), and a third discharged (Moran). The defendants were unable upon request to furnish the applications of the two women, so their work records are not documented to allow for comparisons.8 (These women were two of the three who outranked the plaintiff on the civil service list and were also rejected. The three ranked second, third, and fourth on the list.)

(3) The commissioners found that the plaintiff was prohibitively introverted and another woman not “mature.” Her “poor work record” persuaded the commissioners that a third woman was not “stable.”9 On the other hand, when personality is cited in the reports of successful male candidates (seven of the fourteen appointed), the approving language appears standard or boilerplate. The jury could find to some probability that the commissioners started with a predisposition on the matter of personality in favor of the men, or that stereotyping was at work. Compare Smith College v. Massachusetts Commn. Against Discrimination, 376 Mass. 221, 228 (1978); Buckley Nursing Home, Inc. v. Massachusetts Commn. Against Discrimination, 20 Mass. App. Ct. 172, 176-177 (1985).

B. A conclusion of discriminatory treatment is often based on subtle interlocking factors that do not announce themselves. See Wheelock College v. Massachusetts Commn. Against Discrimination, 371 Mass. 130, 137 (1976). In the testimony of Commissioner Marsella, however, stereotyping to the disadvantage of female candidates is plainly present and might itself be enough to taint the treatment of the plaintiff. Although he [164]

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Bluebook (online)
535 N.E.2d 1280, 27 Mass. App. Ct. 159, 1989 Mass. App. LEXIS 159, Counsel Stack Legal Research, https://law.counselstack.com/opinion/riffelmacher-v-board-of-police-commissioners-massappct-1989.