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SJC-11740

    SEAN PUGSLEY       vs.   POLICE DEPARTMENT OF BOSTON & others.1



            Suffolk.         January 6, 2015. - July 31, 2015.

 Present:     Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
                              Hines, JJ.


Boston. Municipal Corporations, Police. Police, Hiring. Anti-
     Discrimination Law, Sex, Bona fide occupational
     qualification. Employment, Discrimination. Practice,
     Civil, Standing.



     Civil action commenced in the Superior Court Department on
June 2, 2011.

     The case was heard by Carol S. Ball, J., on motions for
summary judgment, and entry of final judgment was ordered by
Frances A. McIntyre, J.

     The Supreme Judicial Court granted an application for
direct appellate review.


     Joseph L. Sulman (David Isaac Brody with him) for the
plaintiff.
     Nicole I. Taub for police department of Boston.



     1
       The Commonwealth's human resources division (division),
the personnel director of the division, and the police
commissioner of Boston.
                                                                        2


     Nicholas A. Ogden, Assistant Attorney General (Ronald F.
Kehoe, Assistant Attorney General, with him) for Human Resources
Division & another.
     The following submitted briefs for amici curiae:
     Jamie Ann Sabino & Leah Kaine for The Women's Bar
Association of Massachusetts.
     Ralph C. Martin & Lisa A. Sinclair for Northeastern
University.
     Simone R. Liebman & Constance M. McGrane for Massachusetts
Commission Against Discrimination.


     CORDY, J.   The plaintiff, Sean Pugsley, brought a claim of

sex discrimination against defendants Boston police department

(department) and the Commonwealth's Human Resources Division

(division) alleging a violation of G. L. c. 151B and of the

Massachusetts Civil Rights Act, G. L. c. 12, § 11I.   The

plaintiff's claim arises from the department's preferential

treatment of females in hiring candidates for the December,

2010, police academy class.   Summary judgment was entered for

the defendants on the discrimination claim, G. L. c. 151B.2       For

the reasons stated herein, we vacate the judgment of the

Superior Court and remand the case for entry of a judgment of

dismissal for lack of standing.

     1.   Background.   Under G. L. c. 31 and the division's

personnel administration rules (rules), the department appoints

entry-level police officers from a "main certification" list

generated by the division at the department's request.      The

     2
       The count of the complaint alleging a violation of G. L.
c. 12, § 11I, was dismissed by agreement of the parties.
                                                                    3


division creates this list by ranking candidates on an

eligibility list according to their scores on the most recent

civil service examination (examination).     The eligibility list

is then augmented by candidates for "reemployment,"3 and

candidates who possess statutory preferences, including

veterans' preferences.   The candidates for reemployment are

required to be placed first on the main certification list,

followed by those with statutory preferences,4 and finally

followed by those remaining with the highest scores on the

examination.   See G. L. c. 31, §§ 26, 40.    By requesting a

"selective certification" of candidates from the division, the

department may consider candidates out of their respective order

if they possess certain qualifications beyond those generally

measured by the examination, such as:   gender, language, and




     3
       Pursuant to G. L. c. 31, § 40, a permanent employee who
becomes "separated from his position because of lack of work or
money, or the abolition of his position," may be placed on a
"reemployment list" in order of seniority. The division is
required to certify qualified applicants from that list before
certifying names from any other promotional list.
     4
       Those candidates with statutory preferences who appear on
the main certification list are themselves ranked in order of
their civil service examination scores. In other words, if
there were fifty candidates with veterans' preference, they
would all appear higher on the main certification list than
candidates without such preference, but the order among those
fifty candidates would depend on their examination scores.
                                                                     4


emergency medical training.5   These candidates are to be selected

from the eligibility list and placed on a "selective

certification" list according to their examination scores, and

any of the applicable statutory preferences which those

candidates may have.

     In June, 2008, the plaintiff, a male, scored 103 on the

examination in connection with his application for the December,

2010, police academy class.    The plaintiff's score placed him at

the top of the list of eligible candidates who did not qualify

for reemployment or a statutory preference.    However, because of

those preferences, he was ranked 214 on the eligibility list.

     In March, 2010, the department requested a main

certification list and three selective certification lists from

the division for appointments.    The department sought to appoint

twenty-four candidates from a main certification list.    The main

certification list provided to the department by the division

included 113 of the top candidates on the eligibility list.6


     5
       The Boston police department (department) is required to
submit to the division, along with its request for a selective
certification, the reasons for needing particularly qualified
candidates that normally would not be addressed by the civil
service examination or covered by any of the statutory
preferences.
     6
       In addition to this list, the department also considered
qualified cadets as permitted by statute. Statute 1978. c. 174,
as amended by St. 1979, c. 560, and St. 1984, c. 277, permits
the department to place a number of qualified Boston police
cadets (up to thirty-five or one-third of an academy class,
                                                                   5


Because the plaintiff was number 214 on the eligibility list,

his name was not on the main certification list.

     The other three certification requests were "selective,"

seeking candidates with special qualifications as permitted by

the rules.   These selective certifications, which were approved

by the division, allowed for the appointment of ten female

candidates from a special certification list of 178 female

candidates; eight Cape Verdean speakers from a list of forty

candidates; and ten Haitian Creole speakers from a list of

fifty-five candidates.

     Sometime later in the hiring and review process, the

department recognized a need to appoint more than the previously

approved ten female candidates from the special certification

list of 178 candidates.   Rather than requesting an additional

female selective certification list from the division,7 the

department hired a total of twenty-eight of the female




whichever is greater) into each academy class without
certification from an eligibility list prepared under G. L.
c. 31 by the division. These cadets would therefore be eligible
for selection prior to any consideration of the selective or
main certification lists. See generally G. L. c. 147, § 21A
(appointment, qualifications, compensation, status, and
retirement and pensions of police cadets).
     7
       It was alleged that doing so would have taken too much
time, and that it is not uncommon for the appointing authority
to make more appointments from the certification lists than
previously authorized.
                                                                   6


candidates from the existing list.8     In January, 2011, the

department notified the division of these additional hires,

which the division approved.   Ultimately, eighty-three

candidates selected from the four certification lists

successfully completed the recruitment process and entered the

police academy in December, 2010.     The candidates with

statutorily preferred status were not exhausted on the main

certification list and, as a result, other applicants on the

eligibility list, such as the plaintiff, were not considered.

     The plaintiff filed suit in Superior Court in June, 2011,

challenging the preferential treatment of female candidates

because of their gender.9   The plaintiff and the department filed

cross motions for summary judgment.10    In September, 2013, a


     8
       The judge stated that a total of thirty candidates from
the female selection entered the academy, but the correct number
appears to be twenty-eight.
     9
       In addition to filing suit in the Superior Court, the
plaintiff also appealed the department's hiring decisions to the
Civil Service Commission (commission), pursuant to G. L. c. 31,
§ 2 (b). In a written decision, the commission found that the
appeal was not duplicative of the action filed in the Superior
Court. The commission dismissed the department's and the
division's motions for summary disposition and found that the
department and the division did not comply with the express
mandate of the civil service law. It subsequently ordered that
an investigation be initiated pursuant to G. L. c. 31, § 2 (a).
That action is not the subject of this appeal.
     10
       The division and its personnel director were still
parties in the case at the time the cross motions for summary
judgment were filed, but were not involved in the cross motions.
After the judge granted judgment in favor of the department,
                                                                  7


Superior Court judge denied the plaintiff's motion and granted

judgment in favor of the department, finding that the

preferential treatment of female candidates was justified

because gender was a valid bona fide occupational qualification

(BFOQ)11 and, as a result, the department was entitled to

judgment as a matter of law.   We granted the plaintiff's

application for direct appellate review.

     2.   Discussion.12   In reviewing a grant of summary

judgment, "we assess the record de novo and take the facts,

together with all reasonable inferences to be drawn from them,

in the light most favorable to the nonmoving party."    See Bulwer

v. Mount Auburn Hosp., 86 Mass. App. Ct. 316, 318 (2014), citing

Godfrey v. Globe Newspaper Co., 457 Mass. 113, 119 (2010).

     a.   Standing.   In order to have standing in the instant

case, the plaintiff must "show that the challenged action has

caused [him] injury" and that there was a "breach of duty owed

to [him] by the public defendants" (citations omitted).


both the department and the division moved for entry of final
judgment in favor of all defendants, which was granted in
October, 2013.
     11
       If the employer can demonstrate that a bona fide
occupational qualification (BFOQ) limits the position to a
particular gender, G. L. c. 151B, § 4 (1), permits the use of
gender in the hiring process.
     12
       We acknowledge the amicus briefs submitted by
Northeastern University, the Massachusetts Commission Against
Discrimination, and The Women's Bar Association.
                                                                    8


Sullivan v. Chief Justice for Admin. & Mgt. of the Trial Court,

448 Mass. 15, 21 (2006).   See Yeager v. General Motors Corp.,

265 F.3d 389, 395 (6th Cir. 2001), cert. denied, 535 U.S. 928

(2002).   Simply alleging injury alone is not sufficient and

"[i]njuries that are speculative, remote, and indirect" do not

confer proper standing.    Sullivan, 448 Mass. at 21.   See Los

Angeles v. Lyons, 461 U.S. 95, 101–102 (1983) ("plaintiff must

show that he has sustained or is immediately in danger of

sustaining some direct injury . . . [that is] real and

immediate, not conjectural or hypothetical" [quotations and

citations omitted]); Warth v. Seldin, 422 U.S. 490, 501 (1975)

(plaintiffs must allege "distinct and palpable injury" to invoke

judicial intervention).

    Standing can be addressed by an appellate court sua sponte

even if not raised properly on appeal.   See Sullivan, 448 Mass.

at 21 ("[t]he issue of standing is one of subject matter

jurisdiction"); Litton Bus. Sys., Inc. v. Commissioner of

Revenue, 383 Mass. 619, 622 (1981) ("a jurisdictional issue must

be decided, regardless of the point at which it is first raised

. . . [and] [s]ubject matter jurisdiction cannot be conferred by

consent, conduct or waiver" [citation omitted]).    Therefore, it

is appropriate for this court to take note of an absence of
                                                                    9


proper standing "whenever it appears, whether by suggestion of a

party or otherwise."     Id.13

     At oral argument, the plaintiff argued that he has proper

standing to bring suit, contending that his name likely would

have been considered on the main certification list but for the

department's use of the female certification.     However, this

contention is little more than an allegation that an injury

might have occurred if a series of events transpired in a

certain way.

     The plaintiff's position on the eligibility list -- 214 --

is indicative of the unlikelihood that his name would ever have

been reached.    Indeed, eighty-five other candidates were ahead

of him on the eligibility list when the hiring process was

completed.     Thus, the department would have had to exhaust all

113 names on the main certification list (which it did not), as

well as the remaining eighty-five candidates ranked ahead of the

plaintiff on the eligibility list before the plaintiff would be

considered for a position.14     Nothing in the record speaks to the


     13
        The motion judge concluded that because the department
was entitled to judgment as a matter of law, it was unnecessary
to consider the plaintiff's standing, an issue raised below by
the defendants.
     14
        Although the plaintiff ranked 214 on the eligibility list
and 113 of these candidates were placed on the main
certification list, it appears that some of the first 214
candidates on the eligibility list qualified to be placed on one
of the three selective certification lists, which would leave
eighty-five candidates (rather than one hundred candidates)
                                                                  10


relative likelihood that the candidates ranked ahead of the

plaintiff would have been granted conditional offers of

employment, whether they would have passed the required fitness

and medical review, or even if they would have accepted or

rejected said offers.   Although it is possible that most of the

people ranked ahead of the plaintiff would have either turned

down an offer or would have failed the fitness and medical

review, such a position is purely speculative based on the

record before us.

    The plaintiff argued before the motion judge that

conditional offers were given to nineteen of the 113 candidates

on the main certification list, a ratio of one in six.    Using

this ratio, the plaintiff contended that, without the female

selective list, the department would hypothetically need to

consider approximately 180 more candidates from the eligibility

list (including him) in order to fill all the available

positions.   While this certainly might have happened, nothing in

the record supports the plaintiff's bare assertion.

    Based on the record before us, the plaintiff has failed to

articulate an injury that is anything but hypothetical and,

therefore, we cannot say that he has standing to bring his

claim.   See Group Ins. Comm'n v. Labor Relations Comm'n, 381


ahead of him on the eligibility list even after the exhaustion
of the selection of candidates from the main certification list.
                                                                  11


Mass. 199, 204 (1980) ("[n]ot every person whose interests might

conceivably be adversely affected [has standing to be] entitled

to review" [emphasis added]).   The plaintiff does not point this

court to any fact in the record or any controlling authority

that shows his "injury" was anything more than speculative.

Rather, in his reply brief, he merely contends that whether the

department's sex discrimination materially disadvantaged him

must be decided by a fact finder, rather than addressed sua

sponte by this court.    This argument is unpersuasive.

    First, it is solely the plaintiff's burden to prove his

standing.   He must allege sufficient facts to show that he has

suffered a nonspeculative, direct injury.    See Sullivan, 448

Mass. at 21.   He cannot subsequently claim that there are

insufficient facts for this court to determine whether he lacks

standing; such an argument is circular.   If there are

insufficient facts to determine standing, then logic dictates

that the plaintiff has failed to articulate the necessary facts

to prove his standing.

    Second, although the motion judge did not make any

particularized findings regarding the plaintiff's standing, the

record can still be evaluated on this issue.   Contrast Combs v.

United States, 408 U.S. 224, 227-228 (1972) (vacating and

remanding standing determination because record was "barren of

the facts" necessary to determine whether standing existed).
                                                                     12


The Civil Service Commission's decision, see note 9, supra, from

which the plaintiff draws his ratio argument, is part of the

record before us, as are the selective certifications used by

the department and multiple affidavits that outline the

department's and the division's respective procedures.

Sufficient facts are reflected in that record for this court to

consider standing as a part of our de novo review of an appeal

from summary judgment.      See Matthews v. Ocean Spray Cranberries,

Inc., 426 Mass. 122, 123 n.1 (1997) (record open to independent

consideration on appeal and reviewing court may make compilation

of relevant facts from record to decide ultimate questions of

law).

     Viewing all inferences in the light most favorable to the

plaintiff, we cannot conclude, in the absence of articulated

facts or controlling authority, that the alleged injury is

sufficiently concrete and imminent so as to confer proper

standing on the plaintiff.

     b.   Gender as BFOQ.    As the plaintiff lacks proper

standing, we need not decide the merits of his case.      However,

as this is an issue that will likely arise in the future15 and is


     15
       Recently the Massachusetts Commission Against
Discrimination found probable cause in favor of a gender
discrimination claim brought by another male candidate for the
very same police academy class. See Toomey vs. Boston Police
Dep't, Mass. Comm'n Against Discrimination No. 10BEM03305 (Aug.
6, 2014).
                                                                   13


a matter of significant public interest, we take this

opportunity to comment briefly on the use of the BFOQ exception

by the department in the circumstances presented here.

     General Laws c. 151B prohibits discrimination in employment

on the basis of gender unless the employer has a BFOQ to limit

the position to a particular gender.   G. L. c. 151B, § 4 (1).

The assertion that a single-sex hiring policy is supported by a

BFOQ is an affirmative defense, and the burden of proving it

rests, at all times, with the employer.   Sarni Original Dry

Cleaners, Inc. v. Cooke, 388 Mass. 611, 617-618 (1983).     The

BFOQ exception is to be narrowly applied.16   Id. at 617.   See

Dothard v. Rawlinson, 433 U.S. 321, 334 (1977).

     Parties in several contexts have sufficiently met their

BFOQ burdens and demonstrated a need for gender-based policies.

For example, in Everson v. Michigan Dep't of Corrections, 391

F.3d 737, 740, 751-753 (6th Cir. 2004), cert. denied, 546 U.S.

825 (2005), a BFOQ defense was sufficient to designate 250

positions at an all female prison to be staffed solely by female

officers.   This was permitted after the court was supplied with

"an array of materials," id. at 752, demonstrating that the

institution faced a "grave problem of sexual abuse of female


     16
        The Massachusetts Commission Against Discrimination also
takes the position that the BFOQ defense "provides only the
narrowest of exceptions." 804 Code Mass. Regs. § 3.01(3)(a)
(1995).
                                                                   14


inmates[,] . . . a pair of high-profile lawsuits[,] and a chorus

of public criticism charging that [the prison] had ignored, or

covered up, widespread sexual abuse."   Id. at 751.

Additionally, in Jennings v. New York State Office of Mental

Health, 786 F. Supp. 376, 381-387 (S.D.N.Y.), aff'd, 977 F.2d

731 (2d Cir. 1992), a BFOQ defense was deemed justified to limit

the availability of shifts by gender at a mental health

facility, as several facility policies required staff members to

observe patients in particularly intimate settings.

     Here, the department essentially argues that its use of a

female selective certification was justified by the statistical

disparity between the number of female Boston police officers

and the number of female suspects17 and female victims18 that come

into contact with law enforcement.   While we recognize the need

for and the importance of diversified, professional, police

departments, the use of statistical disparities, without more,



     17
       At the time of its request for a female certification,
recognizing that the Legislature has provided statutory
authority for limiting hiring to male or female candidates in
certain circumstances, see G. L. c. 31, § 21, the total number
of female officers constituted only thirteen per cent of the
department's force, and the number of females involved in police
contact as a result of alleged criminal activity was
approximately eighteen per cent.
     18
       In the years leading up to the department's request for a
female certification, over fifty per cent of all assault victims
in the city were female.
                                                                 15


will generally be insufficient to support a BFOQ.19   We leave it

in the first instance to the Massachusetts Commission Against

Discrimination to particularize the showing necessary for

engaging in such discriminatory hiring through the BFOQ process.

     3.   Conclusion.   For the reasons stated above, the judgment

of the Superior Court is vacated, and the case is remanded for

entry of a judgment of dismissal for lack of standing.

                                    So ordered.




     19
       In its filings, the department did not detail any efforts
to increase the number of women available for appointment
without relying on the BFOQ. Such efforts, like recruitment
efforts directed at women veterans and the use of a cadet
training program, are relevant, if not explicitly required, in
assessing the propriety of using discriminatory hiring as a
means of increasing the department's diversity.
