Appendix — Personnel Administrator of Mass. v. Feeney

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NOV 24 1978

[7 Supreme Court, U. y]'

FILED

“MICWAEL RADAK, JR., CLERK

APPENDIX. | .

In the

Supreme Court of the United States.

Ocroser TERM, 1978.

No. 78-233.

PERSONNEL ADMINISTRATOR OF THE

COMMONWEALTH OF MASSACHUSETTS Er At.,

APPELLANTS,

HELEN B. FEENEY,

APPELLEE.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS.

Appeal Docketed August 10, 1978.

Jurisdiction Noted October 10, 1978.

Table of Contents.

Docket entries, Anthony v. Commonwealth et. al.,

No. 74-5061-T (“Anthony”)

Docket entries, Feeney v. Commonwealth et al., No.

75-1991-T (“Feeney”)

Complaint and application for three-judge court (An-

thony)

Amended complaint (Anthony)

Complaint (Feeney)

Plaintiffs’ motion to consolidate with Feeney (An-

thony)

Plaintiff’s application for temporary restraining order

(Feeney)

Temporary restraining order (Feeney)

Defendants’ motion to dismiss (both)

Order convening three-judge court (Feeney)

Agreed statement of facts (Feeney)

Exhibit 1

Exhibit 2

Exhibit 3

Exhibit 4

Exhibit 5

Exhibit 6

Exhibit 7

Exhibit 8

Exhibit 9

Exhibit 10

Exhibit 11

Exhibit 12

Exhibit 82

ii TABLE OF CONTENTS.

Exhibit 83

Exhibit 84

Judgment and order (both)

Opinion (both)

Defendants’ notice of appeal (Feeney)

Supreme Court order certifying questions to Supreme

Judicial Court of Massachusetts (Feeney)

Supreme Court order of remand to District Court

(Feeney)

Plaintiff’s motion for leave to amend and supplement

complaint (Feeney)

Defendants’ opposition to plaintiff's motion fo: leave

to amend and supplement complaint (Feeney)

Judgment and order (Feeney)

Opinion (Feeney)

Defendants’ notice of appeal (Feeney)

182

192

193

195

United States District Court

for the District of Massachusetts.

No. 74-5061-T

CAROL A. ANTHONY

COMMONWEALTH OF MASSACHUSETTS;

DIVISION OF CIVIL SERVICE OF THE

COMMONWEALTH OF MASSACHUSETTS;

EDWARD W. POWERS; NANCY B. BEECHER;

WAYNE A. BUDD; JOSEPH M. DUFFY;

RICHARD J. HEALEY; anp HELEN C. MITCHELL.

Docket Entries.

1974

November

4 Tauro, D.J. Complaint and application for

three-judge court, filed;

Affidavit of Plaintiff in support of TRO, filed;

Memo in support of TRO and three-judge

court, filed;

December

Arguments; motion for TRO, allowed and

issued at 3 P.M.

C.H.J., Corrin, ORDER ENTERED: Desig-

nating D.J. Camppett, D.J. Murray and

D.J. Tauro as members of three judge panel

copy to all counsel.

Deft., Albert E. Salt, Esq. Motion to intervene

by aggrieved party, filed with affidavit of

service.

Dfts’ motion to dismiss, filed c/s.

Dft’s motion to extend time to file memo in

support of motion to dismiss, filed c/s.

Plitff’s opposition to Salt’s motion to intervene,

filed c/s.

Pltf’s opposition to defts’ motion to dismiss,

filed, c/s

Plitf’s motion to extend time for filing of memo-

randum in opposition to deft’s motion to

dismiss, filed, c/s.

Motion by Aggrieved Party to Call Judicial At-

tention to the Fact that the Re-

straining Order Issued by the Court, as Pres-

ently Enforced, is in Violation of the Four-

teenth Amendment. Filed. c/s.

Notice of conference for Feb. 11, 1975 at 10

A.M. to Messrs. Dignan, Reinstein, Mayo,

Salt and Daly.

1975

February

March

Tauro, D.]J.

Conference; agreed statement of facts and

memoranda of law to be filed by April 1,

1975, reply briefs to be filed by April 8,

1975; Hearing on motion to dismiss and on

the merits to be scheduled after reply

briefs are filed; copy of House Bill #1777

submitted to the Court; hearing on motion to

intervene; arguments; advisement.

Tauro, D.J. Motion to intervene denied. Mr.

Salt, however, may file brief amicus curea;

notice to all counsel.

Notice of hearing on the merits for April 14,

1975 at 10 a.m. to all counsel.

Motion to intervene as defts., by the Disabled

Veterans of The United States, Department

of Massachusetts and the Jewish War Veter-

ans of the United States, Department of Mas-

sachusetts, filed. Copies to 3 Judge Panel.

Intervenors’ motion to dismiss, filed, c/s.

Copies to members of the Three Judge Panel.

Pltff’s opposition to the motion to intervene of

disabled veterans of the United States Dept.

of Mass. and the Jewish War Veterans of the

United States, Dept., of Mass. filed, c/s.

Copies to Three Judge Panel.

Tauro, D.J.

Motion to continue briefing and argument,

filed, copies to Three Judge Panel; motion al-

lowed, hearing continued; copy to members

of panel.

The D.A.V. and the J.W.V., departments of

Mass. oppose and protest the motions to con-

tinue briefing and argument, filed, c/s.

Copies to members of the panel.

Motion for hearing on Intervenors pleadings,

filed, c/s. Copies to Three Judge Panel.

Letter dated May 2, 1975 to Judge Tauro from

Mr. Ward, representing plaintiff, requesting

conference; conference scheduled for 5-22-75

at 3P.M., Mr. Ward to notify other counsel,

including Mr. Salt, intervenor.

Pitff’s motion to add Betty A. Gittes and

Kathryn Noonan as Pltffs. filed, c/s (Copies

to Three-judge panel.)

Pltfs’ motion to consolidate for trial this action

with Feeney v. Commonwealth of Mass., ET

AL, CA 75-1991-T, filed with cs. Copies to

3-Judge panel.

Tauro, D.J. Case called for conference; to con-

solidate 75-1991-T with 74-5061-T, allowed;

All discovery to be completed within four

wéeks, agreed statement of facts to be filed

two weeks after completion of all discovery

and briefs and memoranda to be filed four

weeks after agreed statement of facts are

1975

June

are filed; pre-trial order to issue for hearing

in September. Motion to intervene, denied

but intervenor allowed to file his brief. Mo-

tion to amend complaint by adding party

plaintiffs, allowed.

Tauro, D.J. May 23, 1975 Procedural order

issued. Copies to counsel.

Tauro, D.]J.

Pre-Trial order issued for hearing on Sept. 5,

1975 at 11 A.M. to all counsel.

Deft’s motion to dismiss, (Copies to Three

Judge Panel) filed, c/s.

Pitff’s opposition to deft’s motion to dismiss,

filed, c/s. copies to Three Judge Panel.

Motion of the parties to have to July 17, 1975 to

file agreed statement to facts, filed.

Tauro, D.J., Motion of parties for modifica-

tion of Order establishing date (July 17,

1975) for filing agreed statement of facts,

“ALLOWED.” Copies to Three Judge

Panel.

Agreed Statement of Facts, filed. Copies to

Three-Judge Panel

Exhibits 1-50; 51-86; 61; 93; 113-168, filed.

Exhibits 90-112 and 91 filed.

Motion of parties for modification of Order for

the filing of Briefs and for permission to file

reply Briefs, filed. Copies to Three Judge

Panel.

1975

July

August

Tauro, D.J., Motion of parties for modifica-

tion of order for the filing of briefs and for

permission to file reply briefs, “ALLOWED.”

Copies to counsel.

Motion of Parties for modification of order for

the filing of Briefs and for the filing of reply

Briefs, filed.

Tauro, D.J., in re motion of parties for mod-

ification of order for the filing of briefs and

for the filing of reply briefs; motion is AL-

LOWED. Copies to Messers Ward, Rein-

stein, Posner and Salt.

Motion of parties for modification of order for

the filing of Briefs and the filing of reply

briefs, filed.

Brief for the defendant FILED cs.

Tauro, D.J., Motion of parties for modifica-

tion of order for the filing of briefs and for

the filing of reply briefs, “Allowed.” Copies

to counsel.

Brief of the plaintiffs, filed Copies to the Three

Judge Panel.

Tauro, D.J., Pitffs’ motion to extend time to

file briefs to Aug. 20, 1975, filed and allowd;

counsel notified.

Letter to Judge Tauro, dated Aug. 14, 1975,

from Stephen B. Perlman, Esq. re submit-

ting corrections in the agreed statements of

facts, filed. copies to be filed Monday 18,

1975 for a 3 Judge Panel

Reply Brief for the defts., filed, c/s. Copies to

3 Judge Panel.

1975

August

September

Letter to Judge Tauro, dated Aug. 15, 1975,

from A.A.G. Posner and Stephen B. Perlman,

Esq. Re After discussion, counsel are in agree-

ment that items one through six have been

addressed in the briefs and agreed statements

of fact already submitted by the parties, Fur-

ther, counsel agree that the remaining items

(seven through eleven) are not applicable be-

cause the above-entitled cases do not involve

witnesses or presentation of other evidence.

Counsel therefore request that the Court

consider the documents already filed by the

parties as meeting the requirements of a pre-

trial memorandum, filed.

Reply brief of the Plaintiffs, filed; copy to

members of the Three-Judge panel.

Letter to Clerk Doherty, dated Aug. 25, 1975,

from Eleanor D. Acheson, Re Requesting a

notification from your office should Judge

Tauro deny the request and desire a pre-trial

memorandum for the September 5, 1975 per-

trial conference, filed.

Four copies of errata respecting the Brief of

the pltffs and the reply Brief of the pltffs.,

filed. Copies to Three-Judge Panel.

Letter to Judge Tauro, dated Sep. 5, 1975,

from Stephen B. Perlman Re Four addi-

tional copies each of the Brief of the Pitffs

and the Reply Brief of the pltffs. The copies

are identical in all respects to those filed on

Aug. 13, 1975, and Aug. 20, 1975, respec-

tively, except that (1) the copies have been

1975

September

5 corrected to reflect the errata furnished to

the Court by letter dated Sep. 4, 1975, and

(2) the enclosed copies of the Brief of the

pltffs., have been photocopied on both sides

of each page, filed. Copies to Three-Judge

Panel.

5 Pitff’s Reply Brief, filed, c/s. Corrected

5 Pitff’s Brief corrected, filed, c/s.

5 Tauro, D.J., Pre-Trial Conference; Date to be

Set for Hearing on Merits in October by

Three-Judge Panel.

) Notice of trial on merits for Oct. 22, 1975 at

2:15 P.M. to members of three judge panel

and all counsel.

October

15 Tauro, D.J., ORDER: CA 74-5061-T and

CA 75-1991-T Take notice that the above-

entitled hearing on October 22, 1975 at 2:15

PM before CAMPBELL C.J., MURRAY,

D.J. h rescheduled for hearing on

ednesday, November 19;~1975 at 2:15 PM

in Courtroom No. 2 12th Floor, U.S. Post

fice & Courthouse, Boston, Mass.,

RED. Copies to counsel and Three

Judge Panel.

November

13 Notice sent, via certified mail, to Gov. Dukakis

and Atty. General Bellotti in re Three-Judge

Panel hearing on Wed., November 19, 1975

at 2:15 PM, pursuant to the provisions of 18

U.S.C. § 2284 (2).

1975

November

19 Tauro, D.J. Case called for hearing on merits;

Atty. Ward to argue for all the pltffs; Atty.

Posner to argue for all the defts; Argument;

Court adjourns for deliberation at 3:13 PM.

1976

March

29 CAMPBELL, C.J., Murray, D.J., Tauro, D.].

Opinions (3) issued.

CAMPBELL, C.J., Tauro, D.J. Judgment and

order entered. cc/cl and West, Lawyer’s

Weekly, NCAIR, U.S. Law Week and Opin-

ion Book.

United States District Court

for the District of Massachusetts.

No. 75-1991-T.

HELEN B. FEENEY

COMMONWEALTH OF MASSACHUSETTS;

DIVISION OF CIVIL SERVICE OF THE

COMMONWEALTH OF MASSACHUSETTS;

EDWARD W. POWERS; NANCY B. BEECHER;

WAYNE A. BUDD; JOSEPH M. DUFFY;

RICHARD J. HEALEY; anp HELEN C. MITCHELL.

1975

May

Docket Entries.

Complaint filed.

Tauro, D.J. Case called for conference; mo-

tion filed in 75-5061-T to consolidate with

this action allowed; all discovery to be com-

pleted within four weeks, agreed statement

of facts to be filed two weeks thereafter and

briefs and memoranda to be filed four weeks

after that; pre-trial order to issue for hearing

in September.

Tauro, D.J. May 23, 1975 Procedujal order is-

sued. Copies to counsel.

Tauro, D.J. Temporary Restraining Order is-

sued. Copies to counsel.

June

Tauro, D.J. Pre-trial order issued for hearing

on Sept. 5, 1975 at 11 A.M.; copy to all coun-

sel.

Defts’ motion to dismiss, filed, c/s.

FraNnK M. CorFin, Cu.J. U.S. Court or Ap-

PEALS ORDER ENTERED: May 6, 1975 Desig-

nating C.J. CAMPBELL, D.J. Frank J. Mur-

RAY, AND D.J. Tauro as members of three

judge panel. Copy to all counsel.

Tauro, D.J. Motion of parties for modifica-

tion of order establishing date for filing

agreed statement of facts, “Allowed.” Cop-

ies to Three Judge Panel.

Plaintiffs’ opposition to defendants’ motion to

dismiss, filed, c/s. Copies to Three Judge

Panel.

Motion to intervene as a deft., or for leave to

file a Brief as Amicus Curiae, filed, c/s. Cop-

ies to Three Judge Panel.

Affidavit of John P. Swift in support of motion

to intervene as a deft., or for leave to file a

Brief as Amicus Curiae Brought by the

American Legion, Department of Massachu-

setts, Inc., filed, c/s. Three Judge Panel cop-

ies sent to them.

Affidavit of Joseph F. Irvin, filed, c.s. Copies

to Three-Judge Panel.

1975

June

July

June

July

Brief in support of motion to intervene as a

deft., or for leave to file a brief as Amicus

Curiae made by the American Legion, De-

partment of Massachusetts, Inc., filed, c/s.

Copies to Three Judge Panel.

Motion of the parties to have to July 17, 1975 to

file agreed statement of facts, filed.

Tauro, D.J. Motion of parties for modifica-

tiofi of Order establishing date (July 17,

1975) for filing agreed statement of facts,

“ALLOWED.” Copies to Three Judge Pan-

el.

Plaintiff's Opposition to the Motion to Inter-

vene of the American Legion, Dept. of

Mass., Inc., filed c/s. Copies to Three Judge

Panel Memorandum in opposition to the Mo-

tion of the American Legion to Intervene as a

Deft filed, copies to Three Judge Panel.

Tauro, D.J. Motion to Intervene as a Deft. or

for leave to file a Brief as Amicus Curiae

“Motion to file Amicus brief ALLOWED,

Motion otherwise DENIED. Copies to

Messrs. Ward, Reinstein, Posner and Curtin.

Agreed Statement of Facts, filed. Copies to

Three-Judge Panel.

Exhibits 1-50, filed.

Exhibits 51 through 84, filed.

1975

August

Exhibits 61, filed.

Exhibits 90 through 112, filed.

Exhibits 91 filed.

Exhibits 93 filed.

Exhibits 113 through 168, filed.

Motion of parties for modification of Order for

the filing of Briefs and for permission to file

reply briefs, filed. Copies to Three Judge

Panel.

Tauro, D.J. Motion of parties for modifica-

tion of order for the filing of briefs and for

permission to file reply briefs, ‘“AL-

LOWED.” Copies to counsel.

Motion of Parties for modification of Order for

the filing of Briefs and for the filing of reply

Briefs, filed.

Tauro, D.J. In re motion of the parties for

modification of the order for the filing of

briefs and for the filing of reply briefs, mo-

tion is ALLOWED. Copies to Messrs.

Ward, Reinstein, Posner and Curtin.

Motion of Parties for modification of order for

the filing of Briefs and for the filing of reply

Briefs, filed.

Brief for the defendant FILED cs.

Tauro, D.J. Motion of parties for modifica-

tion of order for the filing of briefs and for

the filing of reply briefs, “ALLOWED.”

Copies to Three Judge Panel.

1975

August

September

Amicus Curiae brief of the American Legion

Department of Mass. Inc., in support of the

constitutionality of the Massachusetts Veter-

ans’ Preference Statute FILED with cs.

Brief of the plaintiffs, filed. Copies to tke

Three Judge Panel.

Tauro, D.J. Pitffs’ motion extending time to

Aug. 20, 1975 to file reply briefs, filed and

allowed; counsel notified.

Reply brief for the defts, filed, c/s.

Reply brief of the plaintiffs, filed; copy to

members of the Three-Judge Panel.

Four copies of errata respecting the brief of the

pltffs., and the reply brief of the pltffs.,

filed; copy to members of the Three-Judge

Panel.

Letter to Judge Tauro, dated Sep. 5, 1975,

from Stephen B. Perlman Re Four additional

copies each of the brief of the pltffs., and the

Reply Brief of the pltffs. The copies are

identical in all respects to those filed on

Aug. 13, 1975, and Aug. 20, 1975, respect-

fully, except that (1) the copies have been

corrected to reflect the errata furnished to

the Court by letter dated Sep. 4, 1975, and

(2) the copies of the Brief of the pltffs., have

been photocopied on both sides of each page,

filed, Copies to Three-Judge Panel.

Pitffs’ Reply Brief, filed, c/s. (corrected)

5 Pitffs’ Brief corrected, filed, c/s.

5 Tauro, D.J. Pre-Trial Conference; Date to be

Set for Hearing on Merits in October by

Three-Judge Panel.

9 Notice of hearing on the merits for Oct. 22,

1975 at 2:15 P.M. to members of three judge

court panel and all counsel.

October

15 Tauro, D.J. (CA 74-5061-T anv CA

75-1991-T) Orper ENTERED: Take no-

tice that the above-entitled hearing on Octo-

ber 22, 1975 at 2:15 PM before CampseELt,

C.J., Murray, D.J. anp Tauro, D.J. have

been rescheduled for hearing on Wednesday,

November 19, 1975 at 2:15 PM in Court-

room No. 2, 12th Floor, U.S. Post Office &

Courthouse, Boston Mass. Copy to counsel

and members of Panel.

19 Tauro, D.J. Case called for hearing on merits;

Atty. Ward to argue for all the pltffs; Asty

Posner to argue for all the defts; Argument;

Court adjourns for deliberation at 3:13 PM.

1976

March

29 CAMPBELL, C.J., Murray, D.J., Tauro, D.J.

Opinions (3) filed.

CAMPBELL, C.J., Tauro, D.J. Judgment and

order entered. cc/cl and West, Lawyer's

Weekly, NCAIR, U.S. Law Week and Opin-

ion Book.

June

Copy of letter to Representative Hogan from

Mr. Irvin filed with attachments.

Copy of letter to Editor, Herald American from

Mr. Irvin filed.

Defts’ notice of appeal filed, c/s.

Motion for relief from judgment filed, c/s.

Motion for stay of judgment and order pursu-

ant to Supreme Court Rule 18 filed, c/s.

Memorandum of points and authorities in sup-

port of motion for relief from judgment and

stay of judgment and order pursuant to Su-

preme Court Rule 18 filed, c/s.

Motion to file a late affidavit filed, c/s. Cop-

ies of above to 3 Judge Court.

Letter to the Clerk from Mr. Bellotti filed.

Motion for continuance . . . filed, assented to.

Copies to 3-Judge Court.

Tauro, D.J. Above motion allowed.

Affidavit of WaALLAcE H. KounrTze, filed and

copies to members of three-judge panel.

Counsel notified of hearing on 6-23-76 at

2:15 PM.

Pitffs’ opposition to Dfts’ motion for stay of

judgment; opposition to Dfts’ motion for re-

lief from judgment and motion for leave to

extend time for pltff to file a consolidated

memo and additional affidavits, filed c/s,

copy to members of three-judge panel.

Supplemental motion for relief from judgment

filed, c/s. Copies to three-judge panel.

1976

8 &

August

Tauro, D.J. Order entered: “All memoranda

and related materials dealing with the mat-

ters to be taken up at the hearing scheduled

for Wednesday, June 23, 1976 must be filed

by the close of business, Monday, June 21,

1976.” Copy to counsel and members of the

three-judge panel.

Deft’s memo in support of supplemental mo-

tion for relief from judgment filed, c/s.

Stipulation filed.

Memo in opposition to defts’ motions for relief

from jddgment under Rule 60(b) and motion

for stay of judgment and order pursuant to

Supreme Court Rule 18 filed, c/s.

Affidavit of Francis X. Bellotti filed, c/s.

CAMPBELL, C.J., Murray, D.J. AND Tauro,

D.J. Hearing on various motions; argu-

ments; motion for reconsideration and to

modify injunction, denied; motion for stay

pending appeal, granted; order to enter.

Letter to the Clerk from Mr. Reinstein with at-

tached copies of legislation filed, cc/Three

Judge Court.

Tauro, D.J. Order entered, denying motion

for relief from judgment, denying motion

for relief (supplemental) from judgment, and

taking no action on motion for stay. cc/cl.

Judgment and Order, Notice of Appeal for-

warded to the Supreme Court of the United

States.

1976

November

1977

October

November

Letter from Helen Taylor of the Supreme

Court w/ attached opinion, filed.

01 CampsBe.LL, C.J., Tauro, D.J., Murray,

§.D.J. Order for filing briefs and for Oral

argument on 11/29/77 at 2:15 PM entered.

cc/Three Judge Court and counsel.

02 P’s motion, assented to, for modification of

order establishing briefing schedule and to

continue hearing, filed; copies to members of

Three-Judge Court Panel.

Tauro, D.J. Motion, No. 2, allowed; hearing

continued to Wed. Dec. 14, 1977 at 2:15 PM,

copy to counsel and members of three-judge

court panel.

03 Certified copy of judgment from Supreme

Court filed.

04 Defts’ brief filed, c/s. Copies to three judge

Court.

05 Pltfs supplementary memo filed, c/s.

06 Pltfs motion for leave to amend and supple-

ment complaint filed, c/s.

07 Memo in support of 06 filed, c/s.

Copies of 05, 06 and 07 to three judge Court.

08 Amicus brief of American Legion filed,

c/s. Copies to three judge Court.

09 Ds’ opposition to P’s motion for leave to

amend and supplement complaint, filed c/s.

10 Memo in support of No. 09, filed c/s.

Copies of Nos. 09 and 10 to members of the

panel.

11 Reply brief of defts’ filed, c/s. Copies to 3

judge Court.

12 Pitf's reply memo filed, c/s. Copies to 3

judge Court.

13 CampBe.LL, C.J., Tauro, D.J., Murray,

S.D.J. Order entered setting argument on

pitf’s motion to amend for 12/14/77 at 2:15

PM, and for filing memoranda by. 12/13/77

at 4:00 PM cc/cl and three judge Court.

Telephone notice to Messrs. Ward, Kiley and

Adkins.

14 Pitfs motion for clarification filed, c/s.

Copies to 3 judge Court.

15 CAMPBELL, Murray AND TAuRO, ORDER

ENTERED: “In response to plaintiff Feeney’s

‘Motion for clarification’ the parties are ad-

vised to brief any substantive issues to be

considered by the court together with the

procedural issues in determining whether the

motion is to be allowed.”; copy to counsel

and three judge court panel.

16 Supplemental memo in support of plain-

tiffs motion for leave to amend and supple-

ment the complaint. c/s.

17 Memo. of defts. in opposition to pltf.’s mo-

tion for leave to amend and supplement the

complaint.

1977

December

CampPBELL, C.J., Tauro, D.J., Murray, S.D.]J.

(M), Curry, Repoater, THREE Jupce Court

HEARING; ARGUMENTS; ON 1) MOTION BY PLTF

TO AMEND PLEADINGS; 2) REMAND By U.S. Svu-

PREME COURT IN LIGHT OF CASE OF WASHING-

TON V. Davis, ADVISEMENT.

18 CampBELL, C.J., Tauro, D.J., Murray,

§.D.J. Opinions filed (Main opinion by

Tauro, D.J., Concurring opinion by Camp-

bell, C.J., dissenting opinion by Murray,

S.D.J.) cc/cl and West, Lawyer’s Weekly,

U.S. Law Week, Commerce Clearing

House, NCAIR and Opinion Book & 3 judge _

court.

19 CampBELL, C.J., Tauro, D.J. Judgment

and Order entered: 1. Judgment for

Comm. of Mass. and Division of Civil Serv-

ice . . . because these defts’ are not ‘per-

sons’... 2. Judgment for pltf against the

Mass. Director of Civil Service and the

memoes of the Mass. Civil Service Commis-

sion... IT IS ORDERED that: (a) The Mass.

Director of Civil Service and the members of

the Mass. Civil Service Commission are here-

by permanently enjoined from utilizing Mass

Gen Laws ch. 31, § 23 (1971) in any future

selection of persons to fill civil service posi-

tions with the Commonwealth and (b) This

October

injunction shall have no effect upon the con-

tinued status of any individual in a perma-

nent civil service position who holds that po-

sition on the date of this injunction, same

distribution as 18.

20 Notice of appeal to the Supreme Court of

the United States, FILED by defts. cs.

Certified copy of docket entries and pleadings

listed on index in file forwarded to the U.S.

Supreme Court, Wash., D.C.

Rec'd. cert. copy of order of Supreme Court

noting probable jurisdiction in this case,

filed. .

United States District Court

for the District of Massachusetts.

No. 74-5061-T.

[Title omitted in printing. ]

Complaint and Application for a Three-Judge Court.

The plaintiff alleges as follows:

Count I

Jurisdiction and Venue

1. Plaintiff is a female resident and member of the bar of

the Commonwealth of Massachusetts (Commonwealth).

2. The defendant Division of Civil Service (Division) is an

executive and administrative department of the Common-

wealth created under the provisions of Mass. G.L. c. 13, § 2,

and by that same statute placed under the supervision and

control of the Director of Civil Service (Director) and the Civil

Service Commission (Commission). Said Division is charged

with administering and enforcing the provisions of the

Massachusetts Civil Service Law, Mass. G.L. c. 31.

3. The defendant Edward W. Powers is a resident of the

Commonwealth and the Director and as such is an officer of

the Commonwealth and administrative and executive head of

the Division. This action is brought against him in his official

capacity as Director.

4. The defendants Nancy B. Beecher, Wayne 7. Budd,

Joseph M. Duffy, Richard J. Healy and Helen C. Mitchell and

each of them is a resident of the Commonwealth and a

member of the Commission, and together they comprise the

Commission. This action is brought against these defendants

and each of them in their official capacities as members of the

Commission.

5. This civil action arises under the Constitution of the

United States and under 42 U.S.C. § 1983. The amount in

controversy, exclusive of interest and costs, exceeds the sum or

value of $10,000.

6. This is an action for declaratory and injunctive relief

pursuant to 28 U.S.C. §§ 2201 and 2202 commenced to redress

the deprivation, under color of the Massachusetts Civil Service

Law, Mass. G.L. c. 31, and the rules and regulations promul-

gated thereunder, of rights of the plaintiff secured to her by

the Fourteenth Amendment to the Constitution of the United

States.

7. There exists an actual controversy between the plaintiff

and the defendants as to the constitutionality of certifying

names of persons for employment pursuant to an eligible list

for permanent appointment to positions classified Counsel I.

A copy of the present list, which is to be amended, is attached

hereto and marked “A” and is hereinafter referred to as “the

Counsel I Eligible List”.

8. Jurisdiction over the claim alleged is thus conferred upon

this court by the provisions of 28 U.S.C. §§ 133l(a) and

1343(3).

9. This court is the proper venue for adjudication of the

claim alleged by virtue of the provisions of 28 U.S.C.

§ 1391(b).

Statement of Claim

10. The Division, the Director and the Commission and

each of them are charged by the law of the Commonwealth

with the administration and enforcement of the Civil Service

Laws of the Commonwealth (G.L. c. 31) which set forth the

requirements and procedures to be followed in filling vacan-

cies in the vast majority of the jobs available in the employ of

the Commonwealth, its departments, divisions and agencies.

As part of these general duties, these defendants and each of

them are charged with enforcement of the so-called Veterans’

Preference Statute (G.L. c. 31, §§ 21-25) which is a part of the

Civil Service Laws of the Commonwealth.

11. Applicants for employment in permanent positions

governed by the Civil Service Laws of the Commonwealth are

required to undergo some form of competitive examination for

such positions. After the competitive examination has been

graded, all persons receiving a passing grade are placed upon

an eligible list for the position or positions concerned.

12. Appointing authorities of the Commonwealth are re-

quired by law to comply with the following procedure in fill-

ing vacancies for permanent jobs governed by the Civil Service

‘: Laws of the Commonwealth: (a) The appointing authority

sends a requisition to the Director stating the number of

vacancies which are required to be filled. (b) The Director

then certifies, in order of their rank on the eligible list, can-

didates for the position. The entire list is not certified, rather

the number certified is dependent upon the number of posi-

tions to be filled. (c) The appointing authority must select a

person on the list certified to him. If there is one position to be

filled, the appointing authority must select one name from the

first three names on the eligible list. If there is more than one

position to be filled, the appointing authority selects from a

greater number of names in accordance with a formula set

forth in Rule 14 of the Civil Service Rules, a copy of which rule

is attached hereto and marked “B”. Said greater number of

names certified to the appointing authority are certified from

the eligible list in the order in which names are ranked on

the list.

13. The effect of the Veterans’ Preference Statute is to re-

quire that all disabled veterans and other veterans who have

passed the examination be placed on the eligible list ahead of

all other persons who also have passed the examination, which

means that every veteran who passes will be certified to the

appointing authority ahead of every non-veteran who passes.

14. The defendants have compiled a Counsel I Eligible List

for permanent appointment to positions classified Counsel I

which is attached hereto and marked “A”. This Counsel I

Eligible List is an open list which will be continually updated

with the names of applicants who become eligible.

15. In 1974 the plaintiff, who is not a veteran, made an ap-

plication for the competitive examination for permanent ap-

pointments to positions classified Counsel I. The Director

found the plaintiff qualified for permanent appointment to

positions classified Counsel I and placed her name on the eligi-

ble list for Counsel I positions.

16. The Director established the Counsel I Eligible List

pursuant to the Veterans’ Preference Statute by placing the

names of the persons who passed the competitive examination

for permanent appointment to positions classified Counsel I on

the Counsel I Eligible List in the order of (1) disabled

veterans, (2) other veterans, and (3) other applicants. Within

each group, eligibles are listed in order of their scores on the

examination with the highest names listed first.

17. Names will be certified to appointing authorities from

the Counsel I Eligible List in the order in which the names ap-

pear on said list for permanent appointment to at least four-

teen positions classified Counsel I.

18. Plaintiff ranks 57 on the Counsel I Eligible List. Plain-

tiff tied for the highest score of any person on the Counsel I

Eligible List. Solely because of the operation of the Veterans’

Preference Statute 56 veterans rank ahead of plaintiff. No

female ranks higher than 57 on the Counsel I Eligible List.

19. Although approximately 10 percent of those eligible for

permanent appointment to positions classified Counsel I are

female, no female including plaintiff will be certified to any

appointing authority for such permanent appointment be-

cause of the operation of the Veterans’ Preference Statute.

20. Virtually all persons presently holding permanent ap-

pointments to counsel positions in the classified civil service of

the Commcnwealth of Massachusetts are male. Almost all

veterans in the Commonwealth are male. For the five-year

period 1969 through 1973, approximately 55% of all males

passing civil service examinations were veterans, while ap-

proximately 1% of all females passing civil service examina-

tions were veterans. Of all veterans passing civil service ex-

aminations during the period 1969 through 1973, approxi-

mately 98% were males.

21. Defendants’ enforcement of the Veterans’ Preference

Statute has operated and continues to operate to exclude vir-

tually all qualified female applicants from certification for

consideration for any permanent appointment to any Counsel

I position in the classified civil service of the Commonwealth.

Said enforcement has operated and continues to operate to ex-

clude a significantly higher proportion of qualified female ap-

plicants from consideration for permanent appointments than

it does qualified male applicants.

22. Plaintiff's grade on the unassembled competitive ex-

amination for permanent appointment to positions classified

Counsel I is such that she would be in the first group certified

to appointing authorities for consideration for permanent ap-

pointment to such positions but for the Veterans’ Preference

Statute and the rules and regulations of the Division imple-

menting said Statute and their enforcement by the individual

defendants in their official capacities. The salaries for posi-

tions classified Counsel I range from $12,287.60 to $15,579.20

per year.

23. The plaintiff has been informed by the Division that the

Division will begin certifying names from the Counsel I Eligi-

ble List on or about November 5, 1974:

24. The Veterans’ Preference Statute and the rules and

regulations of the Division in implementing said Statute and

their enforcement by the individual defendants in their official

capacities deprive plaintiff of the equal protection of the law

in violation of the Fourteenth Amendment to the United States

Constitution in that they unlawfully discriminate in public

employment on the basis of sex by systematically excluding vir-

tually every qualified and eligible female applicant including

plaintiff, from certification for consideration for permanent

appointment to any Counsel I position in the classified civil

service of the Commonwealth.

25. The pending certification described in Paragraph 23

hereof and all further certifications will cause irreparable

harm to Plaintiff for which she has no plain and adequate

remedy of law.

Count II

26. Plaintiff reasserts the averments of Paragraphs 1

through 23 and 25, inclusive, of this Complaint with the same

force and effect as if herein set forth and repeated in full.

27. For many years the Commonwealth has excluded

females from, or discriminated against females in filling,

various positions in public employment including counsel posi-

tions. As a result, females continue to be underrepresented in

those positions in the classified civil service of the Common-

wealth which are most desirable in terms of salary, responsi-

bility and opportunity for advancement, including positions

classified Counsel I.

28. Because of the Commonwealth’s history of exclusion

and discrimination against females in public employment, the

defendants are under an affirmative constitutional duty to the

plaintiff to eliminate every law, rule and regulation that has

the effect of operating in practice to perpetuate the exclusion

of, or discrimination against, qualified female applicants with

respect to public employment, including the provisions for

veterans’ preference in the Massachusetts General Laws and in

the rules and regulations of the defendant Division of Civil

Service.

Count III

29. Plaintiff reasserts the averments of Paragraphs 1

through 23 and 25, inclusive, of this Complaint with the same

force and effect as if herein set forth and repeated in full.

30. The United States of America has adopted various laws,

regulations and practices expressly excluding females from the

armed forces and expressly limiting opportunities for females

in the armed forces with the effect that females have been and

continue to be discouraged by federal law from joining or at-

tempting to join the armed forces of the United States. Such

laws and regulations include laws and regulations limiting the

percentage of positions in the armed forces open to females,

laws and regulations establishing stricter qualifications for

females than for males seeking to join the armed forces, laws

and regulations discriminating against females as to benefits,

positions and promotions available to members of the armed

forces, and laws and regulations excluding females irom the

service academies. Said laws and regulations have created an

environment which has discouraged and discourages females

generally from joining the armed forces of the United States.

31. The Veterans’ Preference Statute and the rules and

regulations of the defendant Division implementing said

Statute, and their enforcement by the individual defendants in

their official capacities, deprive plaintiff of the equal protec-

tion of the law in violation of the Fourteenth Amendment to

the United States Constitution in that they unlawfully

discriminate in public employment on the basis of sex by the

adoption of a qualification for public employment based on

incorporating and perpetuating the sex discrimination express-

ly established by law and regulation in the armed forces of the

United States.

Wuererore, plaintiff prays:

A. That a three-judgé Court be convened pursuant to 28

U.S.C. §§ 2281 and 2284 to hear and determine this action

upon at least five days notice of hearing to the Governor and

Attorney General of the Commonwealth.

B. That the Court enter judgment declaring that the

veterans’ preference provisions of the Massachusetts General

Laws and of the rules and regulations of the defendant Divi-

sion implementing said provisions as applied to the eligible list

for permanent appointments to positions classified Counsel I

violate the Fourteenth Amendment to the United States Con-

stitution and are invalid as so applied.

C. That the Court enter a preliminary injunction enjoining

the Commonwealth, its agencies and divisions, including but

not limited to the Division of Civil Service, from enforcing the

veterans’ preference provisions of Mass. G.L. c. 31, §§ 21-25,

until this action can be heard and decided on the merits.

D. That the Court permanently enjoin the Common-

wealth, its agencies and divisions, including but not limited to

the Division of Civil Service, from enforcing the veterans’

preference provisions of Mass. G.L. c. 31, §§ 21-25.

E. That the Court grant to plaintiff her costs and expenses

of litigation.

F. That the Court grant to plaintiff such other relief as to

the Court may seem meet and just.

By her attorneys,

THOMAS G. DIGNAN, JR.

JOHN SILAS HOPKINS, III

RICHARD P. WARD

STEPHEN B. PERLMAN

Ropes & Gray

225 Franklin Street

Boston, Massachusetts 02110

617-423-6100

JOHN REINSTEIN

3 Joy Street

Boston, Massachusetts 02108

617-227-9469

{Attachment A, entitled “Counsel I Eligible List,” has been

deleted from the Complaint and has been reproduced as Ex-

hibit 9 to the Agreed Statement of Facts at page 152 of the Ap-

pendix. ]

ATTACHMENT B.

CERTIFICATION OF OTHER ELIGIBLES

Rule 14.

1. Certification shall be made in the order of the standing

on the eligible list, except as provided in Section 4 of this rule,

as follows: —

For 1 vacancy, 3 names For 4 vacancies, 6names

2 vacancies, 4 names 5 vacancies, 7 names

3 vacancies, 5 names

For each multiple of five vacancies, the same multiple of

seven names; for vacancies from one to four, inclusive, over a

multiple of five, additional names according to the above

table.

United States District Court

for the District of Massachusetts.

No. 74-5061-T

[Title omitted in printing. ]

Amended Complaint.

The plaintiffs allege as follows:

Count I

Jurisdiction and Venue

1. Plaintiffs are each female residents and members of the

Bar of the Commonwealth of Massachusetts (the “Common-

wealth”).

2. The defendant Division of Civil Service (the “ Division”)

is an executive and administrative department of the Com-

monwealth created under the provisions of Mass. G.L. c. 13,

§ 2, and by that statute placed under the supervision and con-

trol of the Director of Civil Service (the “Director”) and the

Civil Service Commission (the “Commission”). The Division

is charged with administering and enforcing the provisions of

the Massachusetts Civil Service Law, Mass. G.L. c. 31.

3. The defendant Edward W. Powers, a resident of the

Commonwealth, is the present Director and is an officer of the

Commonwealth and administrative and executive head of the

Division. This action is brought against him individually and

in his official capacity as Director.

4. The defendants Nancy B. Beecher, Wayne A. Budd,

Joseph M. Duffy, Richard J. Healy and Helen C. Mitchell and

each of them is a resident of the Commonwealth and a

member of the Commission, and together they comprise the

Commission. This action is brought against these defendants

and each of them individually and in their official capacities as

members of the Commission.

5. This civil action arises under the Constitution of the

United States and under 42 U.S.C. § 1983. The amount in

controversy, exclusive of interest and costs, exceeds the sum or

value of $10,000.

6. This is an action for declaratory and injunctive relief

pursuant to 28 U.S.C. §§.2201 and 2202 commenced to redress

the deprivation, under color of the Massachusetts Civil Service

Law, Mass. G.L. c. 31, and the rules and regulations promul-

gated thereunder, of rights of the plaintiffs secured to them by

the Fourteenth Amendment to the Constitution of the United

States.

7. There exists an actual controversy between the plaintiffs

and the defendants as to the constitutionality of the hiring

practice, prescribed by G.L. c. 31, which gives to qualified

candidates for permanent positions in the Classified Civil

Service who are veterans a preference in rank over non-veteran

qualified candidates on the eligible lists from which certifica-

tions to permanent positions in the Classified Civil Service are

made.

8. Jurisdiction over the claim alleged is thus conferred upon

this court by the provisions of 28 U.S.C. § 1391(b).

9. This court is the proper venue for adjudication of the

claim alleged by virtue of the provisions of 28 U.S.C. § 1391(b).

Statement of Claim

10. The Division, the Director and the Commission and

each of them are charged by the law of the Commonwealth

with the administration and enforcement of the Civil Service

Laws of the Commonwealth (G.L. c. 31) which set forth the

requirements and procedures to be followed in filling vacan-

cies in the vast majority of the jobs available in the employ of

the Commonwealth, its departments, divisions and agencies.

As part of these general duties, these defendants and each of

them are charged with enforcement of the so-called Veterans’

Preference Statute (G.L. c. 31 §§ 21-25).

11. Applicants for employment in permanent positions

governed by the Civil Service Laws of the Commonwealth are

required to undergo some form of competitive examination for

such positions. After the competitive examination has been

graded, all persons receiving a passing grade are placed upon

an eligible list for the position or positions concerned.

12. Appointing authorities of the Commonwealth are re-

quired by law to comply with the following procedure in fill-

ing vacancies for permanent jobs governed by the Civil Service

Laws of the Commonwealth: (a) The appointing authority

sends a requisition to the Director stating the number of

vacancies which are required to be filled. (b) The Director

then certifies, in order of their rank on the eligible list, candi-

dates for the position. The entire list is not certified, rather

the number certified is dependent upon the number of posi-

tions to be filled. (c) The appointing authority must select a

person on the list certified to him. If there is one position to be

filled, the appointing authority must select one name from the

first three names on the eligible list. If there is more than one

position to be filled, the appointing authority selects from a

greater number of names in accordance with a formula set

forth in Rule 14 of the Civil Service Rules, a copy of which rule

is attached hereto and marked “A”. Said greater number of

names certified to the appointing authority are certified from

the eligible list in the order in which names are ranked on the

list.

13. The effect of the Veterans’ Preference Statute is to re-

quire that all disabled veterans and other veterans who have

passed the examination be placed on the eligible list ahead of

all other persons who also have passed the examination, which

means that every veteran who passes will be certified to the

appointing authority ahead of every non-veteran who passes.

14. The defendants compiled an eligible list for permanent

appointment to positions classified Counsel I, a copy of which

is attached hereto and marked “B” and is hereinafter referred

to as “the Counsel I Eligible List.”

15. In 1974 the plaintiffs, none of whom are veterans,

made applications for the competitive examination for perma-

nent appointments to positions classified Counsel I. The Di-

rector found each of the plaintiffs qualified for permanent ap-

pointment to positions classified Counsel I and placed the

names of plaintiff Anthony and plaintiff Gittes on the eligible

list for Counsel I positions. Plaintiff Noonan did not appear

on the Counsel I Eligible List (Attachment “B”) but is in-

formed, believes and alleges that because the list was an open

list her name would have been added to the list before any

names were certified from the list to any appointing authority.

16. The Director established the Counsel I Eligible List

pursuant to the Veterans’ Preference Statute by placing the

names of the persons who passed the competitive examination

for permananet appointment to positions classified Counsel I

on the Counsel I Eligible List in the order of (1) disabled

veterans, (2) other veterans, and (3) other applicants. Within

each group, eligibles were listed in order of their scores on the

examination with the highest names listed first.

17. Names would have been certified to appointing au-

thorities from the Counsel I Eligible List in the order in which

the names appeared on said list for permanent appointment to

at least fourteen positions classified Counsel I, were it not for

the preliminary injunction previously entered in this action.

18. Plaintiff Anthony was ranked 57 on the Counsel I Eligi-

ble List. Plaintiff Anthony tied for the highest score (94) of

any person on the Counsel I Eligible List. As a result of the

operation of the Veterans’ Preference Statute 56 male veterans

were ranked ahead of plaintiff Anthony. No female was

ranked higher than 57 on the Counsel I Eligible List. Plaintiff

Gittes was ranked 76 on the Counsel I Eligible List. Plaintiff

Gittes tied for the second highest score (92) of any person on

the Counsel I Eligible List. Plaintiff Noonan also received a

score of 92 but re-applied and was informed that her score

would be adjusted to a 94, the highest score received by an ap-

plicant for Counsel I. As a result of the operation of the

Veterans’ Preference Statute 54 male veterans with equal or,

in the case of 52 male veterans, lower scores were ranked

ahead of plaintiff Gittes and plaintiff Noonan.

19. Although each of the plaintiffs received one of the two

highest scores achieved on the Counsel I exam, not one of the

plaintiffs was certified to any appointing authority for perma-

nent appointment to Counsel I positions. Application of the

Veterans’ Preference Statute ranked each of the plaintiffs

below all lower scoring and all male veterans so that each of

the plaintiffs was excluded from any possibility of being con-

sidered for permanent Counsel I positions for which there

were requisitions.

20. Although approximately 10% of those on the Counsel I

Eligible List were female, the operation of the Veterans’

Preference Statute placed each female on the eligible list in

such a low position that she was excluded from any possibility

of being considered for permanent positions for which there

were requisitions.

21. All persons presently holding permanent appointments

to counsel positions in the Classified Civil Service of the Com-

monwealth of Massachusetts are male. Approximately 98 %

of all veterans in the Commonwealth are male. For the five-

year period 1969 through 1973, approximately 55% of all

males passing civil service examinations were veterans, while

approximately 1% of all females passing civil service examina-

tions were veterans. Of all veterans passing civil service ex-

aminations during the period 1969 through 1973, approx-

imately 98% were males.

22. Defendants’ enforcement of the Veterans’ Preference

Statute excluded vitually all qualified female applicants from

consideration for any permanent appointment to any Counsel

I position in the classified civil service of the Commonwealth.

Said enforcement excluded a significantly higher proportion of

qualified female applicants from consideration for permanent

appointments than it did qualified male applicants.

23. Each of the plaintiffs’ grades on the unassembled com-

petitive examination for permanent appointment to positions

classified Counsel I was such that she would have been certi-

fied to appointing authorities for consideration for permanent

appointment to such positions but for the Veterans’ Preference

Statute and the rules and regulations of the Division im-

plementing said Statute and their enforcement by the in-

dividual defendants.

24. The salaries for positions classified Counsel I range

from $12,287.60 to $15,579.20 per year.

25. Were it not for the preliminary injunction entered in

this action, the Division would have begun certifying names

from the Counsel I Eligible List on or about November 5,

1974.

26. The Classified Civil Service of the Commonwealth in-

cludes many thousands of permanent positions. The Veterans’

Preference Statute applies to each of these positions. Veterans’

preference systematically excludes female applicants from

those positions for which both men and women compete by

establishing eligible lists which give absolute preference to

veterans, virtually all of whom are male. Male veterans com-

pete for a large number of the more desirable and higher pay-

ing permanent positions in the Classified Civil Service in

numbers large enough to have the practical effect of excluding

from consideration for appointment virtually all female appli-

cants, including the plaintiffs. Each of the plaintiffs desires to

be able to compete for any position in the Classified Civil Serv-

ice without being eliminated frym consideration by operation

of the Veterans’ Preference Act. The Veterans’ Preference Act

grants a preference to a disproportionate number of male ap-

plicants on the basis of a criterion that is related neither to

ability nor to performance in permanent positions in the

Classified Civil Service.

27. The actions of defendants in applying the Veterans’

Preference Statute to place the name of the plaintiff Anthony

on the Counsel I eligible list behind less qualified male

veterans have humiliated and degraded her and caused her

consequent mental distress and emotional anxiety. Plaintiff

Anthony has thereby been damaged as a result of the unconsti-

tutional actions of defendants under color of state law.

28. Plaintiff Anthony presently holds a provisional appoint-

ment in the Classified Civil Service of the Commonwealth and

is interested in being able to compete equally with male candi-

dates for permanent positions in the Classified Civil Service.

Plaintiff Anthony will by operation of the Veterans’ Preference

Act be eliminated from consideration for any permanent posi-

tion for which she applies and for which men and women

compete. Plaintiff Anthony, having been eliminated from

consideration from Counsel I positions by operation of the

Veterans’ Preference Statute, is discouraged from applying for

other permanent positions and thereby being subjected again

to the humiliation and degradation and consequent mental

distress and emotional anxiety caused by being excluded by

reason of the operation of the Veterans’ Preference Act. Plain-

tiff Anthony has suffered and continues to suffer mental dis-

tress and emotional anxiety from the Commonwealth’s con-

tinued use of the Veterans’ Preference Statute in the hiring

process for all permanent positions in the Classified Civil Serv-

ice.

29. The action of the defendants in applying the Veterans’

Preference Statute to place the name of the plaintiff Gittes on

the Counsel I eligible list behind less qualified male veterans

have humiliated and degraded her and caused her consequent

mental distress and emotional anxiety. Plaintiff Gittes has,

thereby been damaged as a result of the unconstitutional ac-

tions of defendants under color of state law.

30. Plaintiff Gittes is interested in a career in state service

and desires to be able to compete equally with male candidates

for permanent positions in the Classified Civil Service. Plain-

tiff Gittes intends to apply for other permanent positions in the

Classified Civil Service but will, by the operation of the Veter-

ans’ Preference Statute, be eliminated from consideration for

any permanent position for which she applies and for which

men and women compete. Plaintiff Gittes, having been elimi-

nated from consideration from Counsel I positions by opera-

tion of the Veterans’ Preference Act, is discouraged from ap-

plying for other permanent positions and thereby being sub-

jected again to the humiliation and degradation and conse-

quent mental distress and emotional anxiety caused by being

excluded from consideration by reason of the operation of the

Veterans’ Preference Statute. Plaintiff Gittes has suffered and

continues to suffer mental distress and emotional anxiety from

the Commonwealth’s continued use of the veterans’ preference

in the hiring process for all permanent positions in the Com-

monwealth.

31. The actions of defendants in applying the Veterans’

Preference Act to place the name of the plaintiff Noonan on

the Counsel I eligible list behind less qualified male veterans

have humiliated and degraded her and caused her consequent

mental distress and emotional anxiety. Plaintiff Noonan has

thereby been damaged as a result of the unconstitutional ac-

tions of defendants under color of state law.

32. Plaintiff Noonan presently holds a provisional appoint-

ment as a hearing examiner in the Classified Civil Service of

the Commonwealth and, in addition to applying for Counsel I

positions, will make application for a permanent position as a

hearing examiner in the Classified Civil Service when the next

examination for such a position is held. _

33. Plaintiff Noonan is informed that no examination for

permanent appointment to the position of hearing examiner

has been held since 1967. It is likely that a notice of examina-

tion will be posted in the near future.

34. On information and belief, the majority of permanent

positions of hearing examiner are filled by males.

35. When the next examination for permanent appoint-

ment to the position of hearing examiner is held, the defend-

ants will apply the Veterans’ Preference Statute to place on the

eligible list for positions of permanent hearing examiner the

names of male veterans who are less qualified than female ap-

plicants ahead of virtually all female applicants, including

plaintiff Noonan.

36. Plaintiff Noonan will be excluded from consideration

for a permanent appointment as a hearing examiner by reason

of the operation of the Veterans’ Preference Statute in the

same way she has already been excluded from consideration

for a permanent appointment to a Counsel I position. Appli-

cation of the Veterans’ Preference Statute to the position of

hearing examiner will deprive the plaintiff Noonan of the

equal protection of the law and due process in violation of the

Fourteenth Amendment to the United States Constitution.

37. Plaintiff Noonan has suffered and continues to suffer

mental distress and emotional anxiety from the defendant’s

continued application of the Veterans’ Preference Statute in

the hiring process for all permanent positions in the civil serv-

ice and in particular for both Counsel I positions and the posi-

tion of permanent hearing examiner for which she intends to

apply.

38. The Veterans’ Preference Statute and the rules and

regulations of the Division in implementing said Statute and

their enforcement by the individual defendants have deprived

and continue to deprive the plaintiffs of the equal protectqon

of the laws and of due process of law in violation of the Four-

teenth Amendment to the United States Constitution in that

they unlawfully discriminated in public employment on the

basis of sex by systematically excluding qualified and eligible

female applicants, including plaintiffs, from certification for

consideration for permanent appointment to Counsel I posi-

tions in the Classified Civil Service of the Commonwealth and

in that they continue to discriminate unlawfully in public

employment on the basis of sex by systematically excluding

qualified and eligible female applicants, including plaintiffs,

from certification for considerations for permanent appoint-

ments to other positions in the Classified Civil Service of the

Commonwealth.

39. The continued application of the Veterans’ Preference

Act to positions in the Classified Civil Service for which plain-

tiffs are interested in being able to compete equally with male |

candidates is causing irreparable harm to plaintiffs for which

they have no plain and adequate remedy at law.

Count II

40. Plaintiffs reassert the averments of Paragraphs 1

through 39, inclusive, of this Complaint with the same force

and effect as if herein set forth and repeated in full.

41. For many years the Commonwealth has excluded fe-

males from, or discriminated against females in filling, various

positions in public employment including counsel positions

and hearing examiner positions. As a result, females continue

to be underrepresented in the positions in the Classified Civil

Service of the Commonwealth which are most desirable in

terms of salary, responsibility and opportunity for advance-

ment, including positions classified Counsel I and hearing ex-

aminer.

42. Because of the Commonwealth’s history of exclusion

and discrimination against females in public employment, the

defendants are under an affirmative constitutional duty to the

plaintiffs to eliminate every law, rule and regulation that has

the effect of operating in practice to perpetuate the exclusion

of, or discrimination against, qualified female applicants with

respect to public employment, including the provisions for

veterans preference in the Massachusetts General Laws and in

the rules and regulations of the defendant Division of Civil

Service.

Count III

43. Plaintiffs reassert the averments of Paragraphs 1

through 39, inclusive, of this Complaint with the same force

and effect as if herein set forth and repeated in full.

44. The United States of America has adopted various laws,