Lopez v. Massachusetts

United States Court of Appeals
For the First Circuit

No. 09-1664

PEDRO LOPEZ, ET AL.,

Plaintiffs, Appellees,

v.

COMMONWEALTH OF MASSACHUSETTS, ET AL.,

Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Joseph L. Tauro, U.S. District Judge]

Before

Lynch, Chief Judge,
Torruella and Howard, Circuit Judges.

Sookyoung Shin, Assistant Attorney General, and Robert L.
Quinan, Jr., Assistant Attorney General, with whom Martha Coakley,
Attorney General of Massachusetts, was on brief for appellants.
Harold Lichten, with whom Leah Berrault and Lichten & Liss-
Riordan, P.C. were on brief for appellees.

December 3, 2009
 LYNCH, Chief Judge. Plaintiffs, minority police

officers, have brought a disparate impact race claim under Title

VII, 42 U.S.C. § 2000e-2(k)(1)(A)(i), against a state agency that

prepares and administers promotional examinations for local police

officers under the state civil service system. The Title VII claim

depends on the state being the "employer" of the officers.

Plaintiffs have also sued their direct employers, various

cities and the Massachusetts Bay Transportation Authority (MBTA),

as the appointing authorities who make the police promotions

decisions. Plaintiffs make the same claim against the state agency

and the appointing authorities: that the state promotions

examinations have an impermissible disparate impact on minority

candidates. They seek the same relief against both sets of

defendants. Massachusetts and its agency, the Human Resources

Division (HRD), deny they are an "employer" as that term is used in

Title VII. They say that the Eleventh Amendment therefore

immunizes them from suit because Congress has not clearly expressed

any intention to abrogate Eleventh Amendment immunity when the

state functions as it did here.

This case comes before us as an interlocutory appeal from

the district court's denial of Eleventh Amendment immunity for the

state defendants, the state of Massachusetts and Paul Dietl, who

was sued in his official capacity as the Chief Human Resources

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Officer of HRD. The city defendants and the MBTA are not parties

to the present appeal.

We have jurisdiction over this interlocutory appeal, and

we hold that the state defendants do not qualify as "employers" as

that term is used in Title VII. Because the state defendants are

not "employers" under Title VII, we need not reach the

constitutional questions that would arise if the Title VII term

"employer" encompassed the state's activities here.

Our holding that the state defendants are not plaintiffs'

"employers" for purposes of Title VII means that we dismiss

plaintiffs' suit only against these defendants. Plaintiffs' claims

against the city defendants and the MBTA will still proceed. Our

holding in no way evaluates the merits of these defendants' conduct

towards the plaintiffs.

We also wish to be clear there is no claim made that

either the state defendants or the city defendants and the MBTA

have engaged in any form of intentional discrimination in violation

of the Equal Protection Clause. If that were the case, such

conduct could be reached by suit under 42 U.S.C. § 1983.

I. Procedural History

This appeal is one small piece of much broader

litigation. Plaintiffs are African-American and Hispanic police

officers employed by the cities of Boston, Lawrence, Lowell,

Methuen, Springfield, and Worcester, or by the MBTA, who did not

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achieve the promotions to police sergeant they sought. In 2007,

they brought suit under Title VII against two classes of

defendants: the state defendants, which included Massachusetts and

Dietl, and the MBTA and the cities for whom the plaintiffs work.

Plaintiffs sued the state defendants on the theory that

the 2005, 2006, and 2007 promotional exams for police sergeant

administered by HRD, a state agency, had a disparate impact on the

promotion of minorities by the MBTA and the city defendants and had

no job-related purpose. HRD, on plaintiffs' theory, violated Title

VII and was responsible for the dearth of minority promotions in

the MBTA and the cities specified in the complaint.1 Plaintiffs

sought identical remedies against their direct employers and the

state: declaratory and injunctive relief to remedy the effects of

past discrimination resulting from these examinations. They also

claimed compensatory damages, including back pay, along with

attorney's fees, against both sets of defendants.

1
Plaintiffs also sued all defendants under an analogous
Massachusetts statutory provision which prohibits employers from
engaging in discriminatory practices based on race. See Mass. Gen.
Laws 151B, § 4(1), (3), (5). Neither party raises this claim in
this appeal. In any event, the Eleventh Amendment clearly bars
such a claim in federal court against the state defendants. "[A]
claim that state officials violated state law in carrying out their
official responsibilities is a claim against the State that is
protected by the Eleventh Amendment. . . . [T]his principle applies
as well to state law claims brought into federal court under
pendent jurisdiction." Pennhurst State Sch. and Hosp. v.
Halderman, 465 U.S. 89, 121 (1984).

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 After extensive discovery, on January 26, 2009, the state

defendants filed a motion to dismiss, or for summary judgment in

the alternative, on the grounds that they were immune from suit on

all claims under the Eleventh Amendment. They argued that Title

VII abrogates states' Eleventh Amendment immunity only when states

function as "employers" as that term is used in Title VII.

Because, they asserted, HRD is not plaintiffs' Title VII "employer"

on the facts here, they remain immune from suit. They further

argued that HRD's relationship to the plaintiffs cannot be

construed as an employment relationship because such an

interpretation of Title VII would flout congressional intent. The

individual state official also contended the Eleventh Amendment

protects him from suits for damages in his official capacity. The

state defendants added that plaintiffs cannot use the doctrine of

Ex Parte Young to obtain an injunction against the official for an

ongoing violation of federal law because the state is not an

employer for purposes of Title VII.

In a one-line order issued on April 6, 2009, the district

court denied the state defendants' motion to dismiss and for

summary judgment. Lopez v. City of Lawrence, No. 07-11693-JLT, at

1 (D. Mass. Apr. 6, 2009). On May 4, 2009, the state defendants

filed an interlocutory appeal of the district court's denial of

Eleventh Amendment immunity. On May 13, 2009, the district court

ordered proceedings before it stayed until this court resolves the

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appeal. Lopez v. City of Lawrence, No. 07-11693-JLT, at 1 (D.

Mass. May 13, 2009).

II. Factual Background

We describe the material facts, as to which there is no

dispute. Indeed, the material facts are established by state civil

service law and related administrative regulations, and by the

parties' stipulations.

Whether the state, acting in the capacity alleged, acts

as an "employer" within the meaning of Title VII turns upon HRD's

role in the promotion of municipal police officers and its role in

other aspects of plaintiffs' employment by the municipal

defendants.

HRD's relationship with municipalities in the areas of

police hiring and promotions have been discussed in many civil

rights cases brought under various theories.2 None of these cases

2
See, e.g., Sullivan v. City of Springfield, 561 F.3d 7,
9-13 (1st Cir. 2009) (discussing, in a § 1983 suit against a city
defendant only, HRD's role in the process of hiring of city police
officers and the recruitment of minority police officers); Crete v.
City of Lowell, 418 F.3d 54, 57-60 (1st Cir. 2005) (providing
background about HRD's role in the hiring process for city police
officers in a § 1983 and state law claim against a city defendant
only); Cotter v. City of Boston, 323 F.3d 160, 164-66 (1st Cir.
2003) (explaining HRD's role in the promotions process in a § 1983
suit against city and state defendants claiming violations of
plaintiff white police officers' civil rights when the city
promoted minority police officers); Donahue v. City of Boston, 304
F.3d 110, 112-115 (1st Cir. 2002) (describing HRD's role in the
appointment of city police officers in a § 1983 suit against a city
defendant claiming that an affirmative action program for police
hiring was unconstitutional).

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raised or resolved the issue of whether the state was an "employer"

of municipal police officers within the meaning of Title VII.

A. The Relationship between HRD and Cities, Towns, and the
MBTA under Massachusetts Civil Service Law

Under Massachusetts law, plaintiffs' positions as city

and MBTA police officers are subject to the state civil service

law.3 See Mass. Gen. Laws ch. 31, § 48 (applying the civil service

law to positions in the MBTA); id. § 51 (applying the civil service

law to civil service offices in cities).

The state civil service law states that the purpose of

its requirements is to ensure that employees in civil service

positions are recruited, chosen, and promoted based on principles

of merit, not on political affiliation, race, age, gender,

religion, national origin, or other factors unrelated to individual

ability. Id. § 1. "[T]he fundamental purposes of the civil

service system [are] to guard against political considerations,

favoritism, and bias in governmental employment decisions . . . and

to protect efficient public employees from political control."

3
The litigants have consistently referred to the city
defendants and the MBTA collectively as "municipalities" or
"municipal defendants." We do not address the issue of whether
MBTA should be categorized as a municipality or differently for
purposes of describing HRD's role in its promotions decisions.
Whether this categorization is accurate, plaintiffs have waived any
arguments to the contrary. We do note that the MBTA is the direct
employer of the MBTA police under state law. Mass. Gen. Laws ch.
161A, § 2 defines the MBTA as "a political subdivision of the
commonwealth;" under § 3(d), its powers include the authority "to
appoint and employ officers . . . and to fix their compensation and
conditions of employment."

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Cambridge v. Civil Serv. Comm'n, 682 N.E.2d 923 (Mass. App. Ct.

1997).

This law also defines the relationship between the state

agencies which administer the civil service system and cities,

towns, and entities like the MBTA. The defendant cities function

as "appointing authorit[ies]" under this law: they have "power to

appoint or employ personnel in civil service positions." Mass.

Gen. Laws ch. 31, § 1. The state civil service law governs all

positions in all cities, including positions on a city police

force.4 As "appointing authorities," cities enjoy considerable

discretion under the law to choose the system they will use to

evaluate candidates for police promotions, to determine the

criteria for selection, and to make the ultimate selection for a

vacant position, as we discuss below.

State entities, of course, can also be "appointing

authorities" for state employees. However, the state civil service

law uses different language to describe the personnel these state

entities appoint or employ. These personnel are within the

"official service" of the Commonwealth or its "labor service," a

distinction that turns upon whether the position is selected

4
Section 51 exempts labor service positions in cities with
populations of less than one hundred thousand residents from the
civil service law, unless the city chooses to make it applicable.
However, that exception is not relevant here, since the law also
excludes police officers from the definition of a "labor service
position." Mass. Gen. Laws ch. 31, § 51; see also § 47 (defining
"labor service positions").

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through registration or competitive examination. Id. § 1.

Examples of positions in the service of the Commonwealth include

positions in the state's department of highways, the department of

revenue, the department of environmental management, and in the

department of public welfare. Id. § 48. The law explicitly

distinguishes these personnel from city police, who are not in the

service of the Commonwealth. Instead, by statute, city police

occupy "[o]ffices and positions in the service of cities and

towns," id., and they are subject to the state civil service law

based on separate, significantly different sections of the law,

id.; see also id. §§ 51-53.

HRD, in comparison, is a state agency with statutorily

prescribed duties with respect to the administration of the state

civil service system, including the preparation and administration

of certain competitive promotions examinations. The civil service

law identifies HRD as the "[a]dministrator," meaning "the personnel

administrator of the human resources division," as distinct from an

"appointing authority" with the "power to appoint or employ" the

plaintiffs. Id. § 1. As the administrator, HRD has statutory

authority to "make and amend rules which shall regulate the

recruitment, selection, training and employment of persons for

civil service positions." Id. § 3. HRD here is not being sued by

its own HRD employees, but in its capacity as the administrator of

the civil service system.

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 The law also directs HRD to make rules pertaining to

promotional appointments, id. § 3(e), and for conducting

appointment and promotion examinations, id. § 5(e). HRD is also

responsible for maintaining records of examinations, eligible lists

resulting from those examinations, and the results of all

appointment decisions in the civil service. Id. § 5(h).

Significantly, the law also mandates that HRD is "[t]o delegate the

administrative functions of the civil service system, so far as

practicable, to the various state agencies and cities and towns of

the commonwealth." Id. § 5(l).

HRD is not the only state agency responsible for the

administration of the Massachusetts civil service system. HRD

shares this role with another agency, the Civil Service Commission.

The Commission has the power to review any rules proposed by HRD,

and, if the Commission concludes that a given rule violates a

merit-based approach to employment decisions, it can, upon a three-

fifths vote, disapprove of the rule. Id. § 3. The Commission can

also affirmatively propose amendments to these rules if, in the

Commission's view, those changes would reflect basic principles of

merit and would serve the public interest. Id. § 2(f).

Finally, the Commission, not HRD, is responsible for

adjudicating disputes involving various aspects of employment,

including disputes concerning the content and administration of

promotions examinations. Through this process, individuals who are

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disappointed by employment decisions can challenge actions taken by

a "local appointing authority" and those taken by HRD. Id. § 2(b)-

(c).

As part of this process, the Commission can also review

the validity of HRD rules when an aggrieved individual challenges

a rule. Id. § 2(b). The Commission has previously exercised this

authority to scrutinize and ultimately uphold an HRD regulation,

which we shall describe later, pertaining to the promotion of

minority candidates. See Brackett v. Civil Serv. Comm'n, 850

N.E.2d 533, 541, 553 (Mass. 2006) (describing the Commission's

decision). Beyond this, aggrieved individuals can appeal the

Commission's decision in state court and allege that HRD's

regulations, HRD's actions, or actions taken by local appointing

authorities violated state law. Id. at 553 (finding that the

Commission properly concluded that an HRD rule concerning local

affirmative action plans was a proper exercise of HRD's statutory

authority). The Commission is not a defendant in the present

action.

B. HRD's Role in the Promotion of City Police Officers

Under the civil service law, appointing authorities have

considerable latitude over the process by which police officers are

selected for promotion to sergeant. Most importantly,

municipalities are not required to use examinations prepared and

administered by HRD to assess local candidates for promotion to

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police sergeant.5 Cities and towns have long been able to opt out

of the HRD-administered process and implement their own promotional

examinations pursuant to an agreement with HRD. See Mass. Gen.

Laws ch. 31, § 5(l) (statutory authority for HRD to delegate

administrative functions) and §§ 9-11 (setting out the general

parameters for promotional examinations).

Under this option, municipalities assume the

administrative functions that HRD might otherwise perform.

Municipalities are still bound by the state civil service law and

regulations requiring adherence to basic principles of merit. But

municipalities have flexibility in deciding how to satisfy these

regulatory requirements.6

Cities have used this authority to develop and administer

their own police promotional examinations or to rely on the HRD-

5
For the purposes of the promotions process, the state
civil service law refers to "municipalities" and does not
significantly distinguish between cities and towns. Because
plaintiffs have assumed that MBTA's promotions process is identical
to the process that municipal police departments follow for
promotions, we do not address MBTA's promotions process.
Plaintiffs have conflated the two and any arguments to the contrary
are waived.
6
For instance, while state law requires municipalities to
continue making police officer promotions based upon competitive
examinations, Mass. Gen. Laws ch. 31, § 59, municipalities, and not
HRD, choose what form the examination will take, whether to make
the HRD examination one part of the evaluation process, and whether
to develop and administer an entirely different written
examination. Municipalities must also presumably comply with
statutorily established hiring and promotion preferences for
veterans and other specified groups. See id. § 26 (setting out
preferences).

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administered examination in combination with other metrics. For

instance, the cities of Leominster and Salem used a combination of

the HRD examination and a simulated job scenario to evaluate

promotion candidates in 2007. And in 2002, Boston developed and

administered its own written examination.

This decentralized process reflects the future direction

of the civil service administrative system. As of September 1,

2009, cities and towns no longer have the option of relying upon

HRD to develop and administer hiring and promotions examinations

for police sergeant or any other civil service positions, due to

Massachusetts' budgetary constraints. Instead, municipalities have

begun developing and administering their own processes. See Letter

from Paul D. Dietl, Chief Human Res. Officer, HRD, to Mun.

Appointing Auths., Human Res. Divs., Fire Chiefs, and Police Chiefs

(Aug. 7, 2009), available at http://www.mass.gov/Eoaf/docs/hrd/cs/

information/cs_aug_7_2009.doc. Cities and towns must, of course,

create processes that comport with state civil service laws. And

state law still provides oversight over the process: people

aggrieved by municipalities' appointment or promotion decisions can

directly appeal to the Civil Service Commission. But HRD's role in

the promotions process under this system is limited to providing

technical assistance when asked. Id.

Until these recent changes, cities and towns could

alternately make their police promotion decisions by relying in

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part upon the results of a competitive annual examination

administered by HRD. For 2005, 2006, and 2007, the years at issue

in this suit, all the city defendants and the MBTA chose this

option to evaluate candidates for promotion to police sergeant.

Municipalities that chose to use the HRD examinations

nevertheless retained flexibility over key aspects of promotions,

including the ultimate choice among candidates. They could also

consider factors beyond performance on the HRD examination.

By law, municipal police promotions must be made on the

basis of competitive examinations, whether on the basis of the HRD

examination or some other test. Mass. Gen. Laws ch. 31, §§ 59, 65.

HRD is given statutory authority to establish the form and content

of these examinations. Id. § 16. However, HRD's discretion in

this area is bounded. By statute, all examinations must "fairly

test the knowledge, skills and abilities which can be practically

and reliably measured and which are actually required" to perform

the job, a requirement that may significantly limit both the form

and the substance of an examination. Id. And HRD must consult

with labor representatives and professionals in the field to

determine what skills and abilities are relevant for promotion to

police sergeant or any other position. Id.

For decades, HRD and its predecessor agency developed

annual written examinations to evaluate candidates for police

sergeant promotions. State civil service law and a consent decree

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to which HRD's predecessor agency was a party shaped the content

and form of these examinations. That consent decree, entered in

1980, arose from civil rights litigation involving the Boston

police department, but, in general terms, HRD's predecessor agreed

to develop and administer promotional examinations that complied

with the Equal Employment Opportunity Commission's (EEOC) Uniform

Guidelines on Employee Selection Procedures (1978), 29 C.F.R.

§ 1607.1-18. See Boston Police Superior Officers Fed'n v. City of

Boston, 147 F.3d 13, 15, 17-18 (1st Cir. 1998) (describing the

terms of the consent decree as it applied to HRD's predecessor).

The Guidelines required, inter alia, maintaining records that show

the impact that examinations have on applicants according to race,

sex, or ethnic group, see 29 C.F.R. § 1607.4(A), and complying with

stringent standards to verify that the substance and form of the

examinations are significantly related to job performance, id.

§ 1607.5.

Nothing in the civil service law, however, mandated that

municipalities had to use the results of HRD's written examinations

as the only criterion to evaluate merit. Section 3(e) states that

promotional appointments must generally be made "on the basis of

merit as determined by examination, performance evaluation,

seniority of service or any combination of factors which fairly

test the applicant's ability to perform the duties of the position

as determined by the administrator." Mass. Gen. Laws ch. 31,

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§ 3(e). Section 6B further provides that HRD and collective

bargaining representatives must jointly determine the weight that

appointing authorities should give to performance evaluations as

another basis for evaluating candidates. Id. § 6B.

In any event, subject to these constraints, the police

promotional examinations HRD developed in 2005, 2006, and 2007

consisted of one hundred multiple-choice questions derived from law

enforcement textbooks. The highest possible score on the test was

100, and 70 was the minimum passing score. After developing the

examinations, HRD was required by law to prepare a notice of the

examination for promotion to police sergeant. Id. § 19.

Massachusetts civil service law also limited the possible pool of

promotional candidates to only those officers who had served on the

force for at least three years in most cities. Id. § 59.

After administering these examinations, HRD was required

under the civil service law to create and maintain "eligible lists"

of candidates for possible promotion to police sergeant, broken

down by police department. Id. § 25 (generally discussing eligible

lists). While eligible lists ordinarily ranked promotion

candidates in order of their written examination scores, id., the

law also imposed a number of preferences that significantly

affected candidates' rankings. Various categories of veterans, for

instance, are given an absolute preference over other candidates,

and candidates meeting that description are listed in order of

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examination performance before any other candidates, even if other

candidates received higher scores. Id. § 26. By virtue of these

mandatory preferences, the top scorers on the HRD written

examinations were not inevitably the candidates listed at the top

of the eligibility list. By law, an eligibility list produced in

a given year also usually expired after two years, and such lists

were available for public inspection. Id. § 25.

Municipalities only saw these eligibility lists if they

determined that they had a vacancy for police sergeant and decided

to fill it through promotion by using the results of the HRD

examination. Promotion was not a police department's only option

for filling such a vacancy; by law, police departments could also

request a transfer from another department, subject to HRD's

verification that the request was made for good reason and would

not impose undue hardship on the transfer candidate. Id. § 35.

Assuming that a local police department had opted to use

the HRD examination process and wanted to promote officers to fill

an open position for police sergeant, the department would notify

HRD of the number of vacancies in the department through a

requisition. Id. § 7. Pursuant to § 27, HRD would then certify

from the relevant eligible list the names of the three candidates

at the top of the list who confirmed that they were willing to

accept the job. Id.; id. § 27. If a candidate did not so confirm,

that name was removed, altering the rankings. Id. § 25.

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 HRD, under its rulemaking authority, also promulgated

PAR.09 in its Personnel Administration Rules, a rule to clarify the

number of names to be certified based on the number of vacancies a

local police department identified. Human Res. Div., Personnel

Administration Rules PAR.09 (2003). PAR.09, commonly referred to

as the "2n + 1" rule, states that to fill a certain number of

vacancies, a municipality can choose from a number of candidates

from the ranked list equal to twice the number of vacancies plus

one. Id. The rule extrapolates from the statutory requirement

that HRD certify three candidates for a single vacancy. If there

are two vacancies, the municipality must choose among the top five

candidates, and so on. Id.

Even at this point, however, municipalities did not have

to automatically promote the candidate at the top of the

eligibility list. That is so for several different reasons.

"Nothing in [the civil service law]," the Massachusetts Supreme

Judicial Court has observed, "mandates that promotions be made in

strict rank order based only on examination results." Brackett,

850 N.E.2d at 553. First, the civil service law allowed the police

department to bypass the candidate at the top of the list, so long

as the department, as the appointing authority, then provided HRD

with a written statement of reasons. Mass. Gen. Laws ch. 31, § 27.

Municipalities could bypass the top-ranked candidate on an

eligibility list for many reasons, including a history of domestic

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violence, past criminal charges, or any other grounds pertaining to

the candidate's ability to effectively perform in the job. See

Crete, 418 F.3d at 59. HRD could review a municipality's

explanation for a bypass only on extremely narrow grounds. Its

review merely ascertained that the municipality's reasons were not

based upon political considerations, favoritism, or bias, and HRD

could not second-guess a municipality's judgment. Id. at 59 & n.9.

The bypassed candidate could then obtain a hearing before the Civil

Service Commission to challenge the municipality's statement of

reasons. Mass. Gen. Laws ch. 31, § 27. Importantly, "[w]hile

Massachusetts law requires an explanation for promotions made

outside of strict rank order, there is no prohibition on such out-

of-rank decisions." Cotter, 323 F.3d 160, 171-72.

Second, at least in limited circumstances, even if HRD

objected to a proposed bypass, municipalities could choose to

promote more than the estimated number of open positions for police

sergeant, thereby avoiding the bypass process entirely. See, e.g.,

id. at 164-65 (noting that in 1997, the City of Boston decided to

promote thirty-six sergeants instead of the initial thirty it had

intended after determining that the initial ranked list of

candidates included only one African-American in the top thirty

scorers). Boston's race-conscious decisionmaking in Cotter was

ultimately upheld under the Equal Protection Clause as a

permissible race-based distinction that was justified by a

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compelling and narrowly tailored government interest. Id. at 168-

71.

Third, municipalities that wished to hire more minority

candidates could do so pursuant to another HRD administrative rule,

PAR.10. Human Res. Div., Personnel Administration Rules PAR.10.

That rule allows police departments to make requisitions to fill

positions included in their affirmative action plans so long as HRD

substantiates that the department engaged in previous

discrimination that was either unconstitutional or in violation of

state or federal law. Id. HRD would then provide the police

department with a separate, ranked list of candidates beyond the

initial 2n + 1 rule who met the identified minority criteria and

were otherwise eligible for the promotion. Id. The number of

candidates on that separate list would also be determined by the 2n

+ 1 rule. Id. The Commission has upheld this rule as a valid

exercise of HRD's rulemaking authority, and Massachusetts' highest

court recognized it as a permissible means by which municipalities

could consider race as a factor in promotion decisions. See Mass.

Ass'n of Minority Law Enforcement Officers v. Abban, 748 N.E.2d

455, 461-62, 469 n.12 (Mass. 2001).

In short, even for police departments that chose to rely

upon HRD-administered written examinations to evaluate candidates

for promotion to police sergeant, these examinations were never

wholly determinative of promotion decisions. These departments had

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a number of ways they could consider other factors beyond

examination scores and look beyond the top-ranked candidates on an

eligibility list. And while the state imposed some limitations on

municipalities' options, these were overwhelmingly the product of

statutory requirements in the civil service law, not of HRD's

administrative decisions. Municipalities must continue to comply

with these requirements even when HRD plays virtually no role in

the promotions process.

In other aspects of police employment, HRD also played

a limited role. HRD developed, administered, scored, and

distributed the results of hiring examinations just as it did in

the promotions process. Mass. Gen. Laws ch. 31, §§ 5(e), 6. HRD

also exercised authority to establish minimum standards and

qualifications for police hires, including health and physical

fitness standards. Id. § 61A.

Finally, the parties have stipulated to a number of

important facts concerning HRD's role relative to the cities and

the MBTA in other aspects of plaintiffs' employment. By law, HRD

does not hire or pay police officers; the cities and MBTA do. HRD

has no daily control over police officers' work activities, nor

does it provide plaintiffs with any financial benefits. HRD is not

responsible for police training, transfer decisions, work

assignments or schedules, supervision, discipline, termination

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decisions, fringe benefits, ERISA benefits, or workers'

compensation insurance.

III. Interlocutory Appellate Jurisdiction

Plaintiffs first contend that this court lacks appellate

jurisdiction to hear this appeal on the grounds that (1)

interlocutory appeals from a denial of Eleventh Amendment immunity

are available only when the appeal raises a pure question of law

and (2) the resolution of this case turns on disputed issues of

fact. Neither contention is accurate.

The Supreme Court rejected the first proposition in P.R.

Aqueduct and Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139

(1993).7 There, the Court found "little basis" for distinguishing

7
Plaintiffs have confused the standard for interlocutory
appeals of qualified immunity, which does distinguish between
appeals grounded in disputed questions of fact and law, with
Eleventh Amendment immunity, which makes no such distinction.
Indeed, their brief relies upon qualified immunity cases. Compare
Rivera-Torres v. Ortiz Velez, 341 F.3d 86, 93 (1st Cir. 2003)
(holding that denials of qualified immunity are immediately
appealable only if they involve a disputed question of law) (citing
Mitchell v. Forsyth, 472 U.S. 511 (1985)), with Rosie D. ex rel.
John D. v. Swift, 310 F.3d 230, 233 (1st Cir. 2002) (stating that
"pretrial orders granting or denying Eleventh Amendment immunity
are immediately appealable" without qualification).
The distinction between the standard for an interlocutory
appeal of a denial of qualified versus Eleventh Amendment immunity
exists for good reason. Qualified immunity, a judicially crafted
common law doctrine, protects officials against litigation when
they have acted reasonably under the law, whereas Eleventh
Amendment immunity is a constitutional doctrine that safeguards
states' sovereign dignity and the state treasury. See Will v.
Hallock, 546 U.S. 345, 352 (2006).
A prior decision of this court stated that "[o]rders denying
claims of Eleventh Amendment immunity and qualified immunity, to
the extent they turn on issues of law, fall within the ambit of

-22-
between interlocutory appeals in cases where Eleventh Amendment

immunity "is bound up with factual complexities whose resolution

requires trial" and where immunity poses a purely legal question.

Id. at 147. The Supreme Court concluded that when a state's claim

to Eleventh Amendment immunity depended upon a fact-specific

analysis of whether an agency was, for instance, an arm of the

state, it could immediately appeal a denial of immunity.8 Id.

In any event, this case is not one where Eleventh

Amendment immunity depends on disputed facts. Plaintiffs and the

state defendants vigorously dispute whether HRD is an "employer"

under Title VII and therefore amenable to suit because Congress

abrogated state employers' Eleventh Amendment immunity. But they

do so by advancing different interpretations of the relevant

Massachusetts statutes and case law that describes HRD's functions

this exception, and are thus immediately appealable to this Court."
Asociación De Subscripción Conjunta Del Seguro De Responsabilidad
Obligatorio v. Flores Galarza, 484 F.3d 1, 13 (1st Cir. 2007).
That statement is accurate, but that case neither raised nor
discussed the issue addressed in P.R. Aqueduct and Sewer Auth.,
namely whether a fact-dependent issue of Eleventh Amendment
immunity could also be immediately appealed. The language of that
previous opinion cannot be read to suggest that the standards for
interlocutory appeals of Eleventh Amendment and qualified immunity
are identical.
8
It is unclear whether P.R. Aqueduct and Sewer Auth. would
deprive courts of interlocutory appellate jurisdiction of a denial
of Eleventh Amendment immunity where the case "implicates
extraordinary factual difficulty." 506 U.S. at 147. That issue is
not present in our case.

-23-
and by proposing different legal tests to define an "employer."

These are questions of law.

Plaintiffs secondarily argue that the state defendants

are not entitled to an interlocutory appeal because there is no

Eleventh Amendment immunity issue at stake. That too is incorrect.

We have appellate jurisdiction over this case because of the nature

of the Eleventh Amendment issue involved. The state defendants ask

us to hold that the district court erroneously denied

Massachusetts' Eleventh Amendment immunity on the grounds that

HRD's actions here did not make it plaintiffs' "employer" under

Title VII, and that Congress has limited its abrogation of states'

Eleventh Amendment immunity in Title VII only to situations where

states act as actual employers.

The state argues that as a matter of statutory

interpretation, HRD does not meet the definition of an "employer"

under Title VII on the facts of this case. The state urges that it

enjoys Eleventh Amendment immunity because, in the first instance,

it was not the intent of Congress in enacting Title VII even to

attempt to abrogate Eleventh Amendment immunity with respect to the

functions the state performs here, which are not functions

performed as an "employer." The question is whether we can

exercise pendent jurisdiction over these issues in the present

appeal.

-24-
 The Supreme Court has outlined two instances in which

pendent appellate jurisdiction may be appropriate: when an issue is

"inextricably intertwined" with a denial of immunity, and if review

of the pendent issue "was necessary to ensure meaningful review" of

immunity.9 Swint v. Chambers County Comm'n, 514 U.S. 35, 51

(1995). We have interpreted that to mean pendent jurisdiction

exists in such circumstances. See Suboh v. Dist. Attorney's

Office, 298 F.3d 81, 97 (1st Cir. 2002); see also Fletcher v. Town

of Clinton, 196 F.3d 41, 55 (1st Cir. 1999).10

All other circuits have found that pendent jurisdiction

exists in at least this situation. See Morris-Hayes, 423 F.3d at

163-64 (2d Cir. 2005); E.I. DuPont de Nemours & Co. v. Rhone

Poulenc Fiber & Resin, 269 F.3d 187, 203 (3d Cir. 2001); Rux v.

Republic of Sudan, 461 F.3d 461, 475 (4th Cir. 2006); Byrum v.

Landreth, 566 F.3d 442, 449-50 (5th Cir. 2009); Crockett v.

Cumberland Coll., 316 F.3d 571, 578-79 (6th Cir. 2003); Jones v.

InfoCure Corp., 310 F.3d 529, 536 (7th Cir. 2002); Wright v.

9
It has not held that courts of appeals are prohibited
from exercising pendent jurisdiction over related issues in an
interlocutory appeal.
10
Unlike the question of whether a denial of immunity is
appealable at all, when the distinction between qualified and
Eleventh Amendment immunity matters, the doctrine of pendent
appellate jurisdiction in interlocutory appeals does not depend on
the type of immunity involved. See Morris-Hayes v. Bd. of Educ.,
423 F.3d 153, 163-64 (2d Cir. 2005). Once a court can hear the
interlocutory appeal, pendent jurisdiction facilitates a full
resolution of the issues at the crux of the appeal.

-25-
Rolette County, 417 F.3d 879, 883-84 (8th Cir. 2005); Hendricks v.

Bank of Am., N.A., 408 F.3d 1127, 1134-35 (9th Cir. 2005);

Timpanogos Tribe v. Conway, 286 F.3d 1195, 1200 (10th Cir. 2002);

Bryant v. Jones, 575 F.3d 1281, 1301 (11th Cir. 2009); Kilburn v.

Socialist People's Libyan Arab Jamahiriya, 376 F.3d 1123, 1133-34

& n.7 (D.C. Cir. 2004).11

Our circuit has specifically held that we have pendent

jurisdiction over issues related to a denial of Eleventh Amendment

immunity on an interlocutory appeal so long as the two issues are

"inextricably intertwined." Nieves-Márquez v. Puerto Rico, 353

F.3d 108, 123 (1st Cir. 2003); see also Limone v. Condon, 372 F.3d

39, 50-51 (1st Cir. 2004). In Nieves-Márquez, we reasoned that a

claim that no cause of action for damages existed under the

relevant statutes was "inextricably intertwined" with the

constitutional immunity question because, if injunctive relief were

the only statutorily available remedy against the state officer

defendants, the Eleventh Amendment immunity issue in that case

would have necessarily disappeared. 353 F.3d at 123-24. Because

the statutory issue was both determinative and factually and

11
In Kilburn, the D.C. Circuit recognized that unlike all
other circuits, it had previously entertained the possibility that
pendent appellate jurisdiction might also exist beyond the
circumstances identified in Swint, "when substantial considerations
of fairness or efficiency demand it." 376 F.3d at 1133-34
(internal quotation marks omitted). However, the court also noted
that in practice, its application of this standard was largely
confined to cases where the Swint conditions were present. Id. at
1334.

-26-
legally entwined with the Eleventh Amendment question, we exercised

pendent appellate jurisdiction. Id.; see also Morris-Hayes, 423

F.3d at 163 (explaining that an "intertwined" claim is one with

significant overlap between the claim and the immunity issue);

Armijo by and Through Chavez v. Wagon Mound Pub. Sch., 159 F.3d

1253, 1264-65 (10th Cir. 1998) (holding an "inextricably

intertwined" claim "is coterminous with, or subsumed in," the

immunity issue raised on interlocutory appeal such that "the

appellate resolution of the collateral appeal necessarily resolves

the pendent claim as well") (internal quotation marks omitted).

The doctrine of constitutional avoidance presents an

especially strong justification for exercising pendent appellate

jurisdiction when a statutory issue is "inextricably intertwined"

with an Eleventh Amendment immunity question, as is the case here.

Deciding an antecedent, interdependent statutory question provides

a possible non-constitutional means of avoiding the constitutional

immunity question. This interest in avoidance is heightened in the

Eleventh Amendment context, where questions of immunity often

require a comparatively greater expenditure of judicial resources

and force defendants to extensively litigate the immunity question

just to avoid adverse precedent. Nieves-Márquez, 353 F.3d at 124;

Parella v. Ret. Bd., 173 F.3d 46, 56-57 (1st Cir. 1999).

We hold that in the present case, the statutory

interpretation of the term "employer" is "inextricably intertwined"

-27-
with the question of Eleventh Amendment immunity and, following

Nieves-Marquez, that we have jurisdiction.

IV. Interpreting the Term "Employer" in Title VII

The central issue in this appeal is whether HRD's

relationship to the plaintiffs makes HRD their "employer" under

Title VII.

Title VII defines an "employer" as "a person who is

engaged in an industry affecting commerce who has fifteen or more

employees . . . and any agent of such a person." 42 U.S.C.

§ 2000e(b). A "state" may be such a person. Id. § 2000e(a). The

text ties the definition of an "employer" to the meaning of

"employees."12

Title VII defines an "employee" only as "an individual

employed by an employer." 42 U.S.C. § 2000e(f). The Supreme Court

has recognized that this definition "is completely circular and

explains nothing." Nationwide Mut. Ins. Co. v. Darden, 503 U.S.

318, 323 (1992) (addressing the question of whether a person was an

independent contractor or an employee under ERISA).

A series of Supreme Court decisions have established that

when a statute contains the term "employee" but does not define it,

a court must presume that Congress has incorporated traditional

agency law principles for identifying "master-servant

12
Title VII also applies to employment agencies and labor
unions. See 42 U.S.C. §§ 2000e(c)-(d). HRD clearly is neither.

-28-
relationships."13 See Clackamas Gastroenterology Assocs., P.C. v.

Wells, 538 U.S. 440, 444-47 (2003); Walters v. Metro. Educ. Enter.,

Inc., 519 U.S. 202, 211-12 (1997); Darden, 503 U.S. at 322-23;

Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 739-40

(1989). It is clear that the terms "employer" and "employee" under

Title VII are to be defined with reference to these common law

agency principles. See Walters, 519 U.S. at 211-12; De Jesús v.

LTT Card Servs., Inc., 474 F.3d 16, 18, 22 (1st Cir. 2007);

Alberty-Vélez v. Corporación De P.R. Para La Difusión Pública, 361

F.3d 1, 6 (1st Cir. 2004).

The Supreme Court has recognized a series of non-

exclusive factors used under the common law test. In Reid, the

Court listed thirteen possible factors to determine whether a

person was an independent contractor or an employer for purposes of

the Copyright Act. Those factors are set forth below.14 Reid, 490

13
The term "master-servant," while archaic and perhaps even
offensive in modern usage, refers to the employer-employee
relationship.
14
Those factors were "the hiring party's right to control
the manner and means by which the product is accomplished[;] . . .
the skill required; the source of the instrumentalities and tools;
the location of the work; the duration of the relationship between
the parties; whether the hiring party has the right to assign
additional projects to the hired party; the extent of the hired
party's discretion over when and how long to work; the method of
payment; the hired party's role in hiring and paying assistants;
whether the work is part of the regular business of the hiring
party; whether the hiring party is in business; the provision of
employee benefits; and the tax treatment of the hired party."
Reid, 490 U.S. at 751-52 (internal footnotes omitted).

-29-
U.S. at 751-52. The Court in Darden then adopted and applied these

factors as part of the common law test for determining whether a

person was an employee under ERISA. Darden, 503 U.S. at 323.

In Walters, the Supreme Court endorsed the common law

test, as used in Darden, for the purpose of defining an "employer"

under Title VII. 519 U.S. at 211-12. Beyond that, the question of

whether an employer "had" an employee--the criterion for being an

"employer" under Title VII--turned upon whether an employment

relationship existed on the day in question, regardless of whether

the employee worked or was compensated on a given day. Id.

In Clackamas, in deciding whether physician shareholders

were employees or employers under the Americans with Disabilities

Act (ADA), a statute that defines an "employee" and "employer"

identically to Title VII, the Court again focused on the common law

agency doctrine to define the term "employee" and cited to Reid and

Darden. 538 U.S. at 444-45. The Court rejected the argument that

the term "employer" must be given a broader reading than the common

law meaning in order to effectuate "the statutory purpose of

ridding the Nation of the evil of discrimination." Id. at 446.

Instead, it was swayed by "two countervailing considerations" in

favor of the common law approach. Id. First, the Court observed,

Congress's decision to limit the definition of an "employer" in

Title VII to an entity with fifteen or more employees reflected its

intent to limit liability and the costs of compliance and

-30-
litigation for very small firms. Id. at 446-47. Second, citing

Darden, the Court again emphasized that congressional silence

should be interpreted as an instruction to turn to the common law

alone: "Congress has overridden judicial decisions that went beyond

the common law in an effort to correct 'the mischief' at which a

statute was aimed." Id. at 447.

Clackamas also gave more specific guidance about what the

common law test required:

At common law the relevant factors defining
the master-servant relationship focus on the
master's control over the servant. The
general definition of the term “servant” in
the Restatement (Second) of Agency § 2(2)
(1957), for example, refers to a person whose
work is “controlled or is subject to the right
to control by the master.” See also id., §
220(1) (“A servant is a person employed to
perform services in the affairs of another and
who with respect to the physical conduct in
the performance of the services is subject to
the other's control or right to control”). In
addition, the Restatement's more specific
definition of the term “servant” lists factors
to be considered when distinguishing between
servants and independent contractors, the
first of which is “the extent of control” that
one may exercise over the details of the work
of the other. Id., § 220(2)(a). We think
that the common-law element of control is the
principal guidepost that should be followed in
this case.

538 U.S. at 448.

In particular, the Court in Clackamas was persuaded that

courts should look to the guidelines in the EEOC's Compliance

Manual to address the question of when a person is an "employee."

-31-
Id. at 448-50. Those guidelines, in their current form, list the

following, non-exhaustive factors as indications that "a worker is

in an employment relationship with an employer": "[t]he employer

has the right to control when, where, and how the worker performs

the job;" "[t]he work does not require a high level of skill or

expertise;" "[t]he work is performed on the employer's premises;"

"[t]here is a continuing relationship between the worker and the

employer;" "[t]he employer has the right to assign additional

projects to the worker;" "[t]he employer sets the hours of work and

the duration of the job;" "[t]he worker is paid by the hour, week,

or month rather than the agreed cost of performing a particular

job;" "[t]he worker does not hire and pay assistants;" "[t]he work

performed by the worker is part of the regular business of the

employer;" "[t]he employer is in business;" "[t]he worker is not

engaged in his/her own distinct occupation or business;" "[t]he

employer provides the worker with benefits such as insurance,

leave, or workers' compensation;" "[t]he worker is considered an

employee of the employer for tax purposes;" "[t]he employer can

discharge the worker;" and "[t]he worker and the employer believe

that they are creating an employer-employee relationship." 2 Equal

Employment Opportunity Comm'n, EEOC Compliance Manual, § 2-III, at

5716-17 (2008). The guidelines emphasize that these criteria

-32-
should be viewed in light of the totality of the circumstances

based on the parties' relationship. Id. § 2-III, at 5717.15

It is clear that plaintiffs are not HRD's employees, and

HRD is therefore not their "employer" for Title VII purposes, based

on these factors. The agreed stipulation of facts establishes as

much. HRD has no control over plaintiffs' day-to-day job

performance and no right to exercise such control. Municipal

police officers do not work on HRD's premises and have no

continuing relationship with HRD. Instead, HRD affects plaintiffs

only indirectly, and only to the degree that plaintiffs' local

employers decide to involve HRD in various processes. HRD has no

right to assign plaintiffs any projects, nor does HRD set the hours

of plaintiffs' employment. Plaintiffs' work is certainly not part

of HRD's regular business; HRD is a state regulatory body concerned

with the administration of the civil service system, whereas

plaintiffs, as police officers, are concerned with maintaining

public safety. HRD does not provide plaintiffs with any benefits,

such as insurance or worker's compensation, nor does HRD consider

plaintiffs its employees for tax purposes. HRD has no role in

15
The events at issue in Clackamas occurred before 2000,
and the opinion cited to an older, substantially similar version of
these guidelines. 538 U.S. at 448-49 (citing to Section 605, the
section replaced by the new § 2-III.) We cite to the current
version of these guidelines because the events at issue in this
case occurred after they went into effect and reflect the EEOC's
present guidance regarding statutory coverage. These guidelines,
as the Supreme Court noted in Clackamas, echo the Court's language
in Darden. 538 U.S. at 449.

-33-
termination decisions. Finally, neither HRD nor plaintiffs could

have reasonably believed that they ever established an employer-

employee relationship. As a matter of state law, plaintiffs are

clearly described as the employees of "appointing authorities,"

whereas HRD is defined as the "administrator." This definition

reflects the Massachusetts legislature's decision that it is these

local entities which are the employers of the local police. See

Mass. Gen. Laws ch. 31, § 1.

The Supreme Court has not recognized any other possible

means of interpreting either the term "employee" or the term

"employer" under Title VII and has rejected broader readings. This

court, in turn, has applied common law principles of agency to

define the term "employee" under Title VII. See De Jesús, 474 F.3d

at 21-24 (holding that when defining whether shareholder-directors

were "employees" for the purpose of determining whether a close

corporation was a Title VII "employer," we were bound by

Clackamas); Alberty-Vélez, 361 F.3d at 6-7 (applying the common law

agency test identified in Darden and later precedents to address

whether the plaintiff was an independent contractor or an

"employee" as defined under Title VII).

Most other circuits have also concluded that under

Supreme Court precedent, the definition of an "employee" under

Title VII--and therefore the definition of an "employer"--is

restricted to its meaning at common law. See, e.g., Gulino v. N.Y.

-34-
State Educ. Dep't., 460 F.3d 361, 377-78 (2d Cir. 2006) (applying

the common law agency test to define an "employee" under Title VII

because Supreme Court precedents "require adherence to common law

principles of agency in Title VII cases"); Smith v. Castaways

Family Diner, 453 F.3d 971, 975-76 (7th Cir. 2006) (relying upon

the common law factors the Supreme Court has outlined to determine

whether individuals were "employers" or "employees" under Title

VII); Shah v. Deaconness Hosp., 355 F.3d 496, 499-500 (6th Cir.

2004) (applying the common law agency test and suggesting that

other tests cannot be reconciled with Supreme Court decisions).

Plaintiffs' claim that HRD is their "de facto" employer

is likewise foreclosed. The plaintiffs incorrectly argue that

there is a de facto test which is an exception and an addition to

the common law test. That is not so. The de facto test is the

same as the common law test and stresses the importance of actual

circumstance of an entity's overall control over key aspects of an

employment relationship with a particular set of putative

employees.

An employee's status under Title VII must be determined

by the "actual circumstances of the person's relationship" with the

defendant and not just the label. Serapion v. Martinez, 119 F.3d

982, 987 (1st Cir. 1997). In Camacho v. P.R. Ports Auth., 369 F.3d

570 (1st Cir. 2004), we applied this analysis and looked to the

actual circumstances, and not the labels invoked, to determine when

-35-
an entity was an "employer" under Title VII and related statutes.

Camacho, which did not cite Clackamas but cited Darden and Reid,

phrased the question as whether the defendant "so extensively

controls an aggrieved party's employment relationship as to become

that party's de facto employer." Id. at 574. We stated that this

inquiry was "less an exception" to the common law and "more a

restatement of the rule." Id. at 575 n.3. And we held that "the

[state] agency does not become an employer of those individuals

whom it neither hires, compensates, nor supervises day-to-day even

though it licenses and regulates them." Id. at 578.

On the facts of Camacho, we held that the Puerto Rico

Ports Authority was not the actual or de facto "employer" of harbor

pilots, even though it controlled the issuance and revocation of

their licenses, set out standard procedures governing the boarding

of ships, and participated in the creation and administration of a

retirement plan for harbor pilots. Id. at 576-78. We found that

notwithstanding these regulations, harbor pilots retained control

over many of the relevant indicia of employment under the common

law test. Harbor pilots, for instance, provided their own tools,

training, and instruments for their work, controlled their own

schedules and routes, and were paid by shipowners, not by the Ports

Authority. Id. at 576. We also observed that the Authority did

not behave as the pilots' employer in any practical sense, since it

had no control over hiring or firing decisions, did not treat the

-36-
pilots as employees for tax purposes, and did not provide the

pilots with any benefits or insurance. Id. at 577. All of these

factors, we concluded, "militate strongly against a finding that

the Authority functions as the de facto employer of the harbor

pilots." Id.

In a somewhat parallel case, the Second Circuit recently

rejected the contention that the New York State Education

Department was a Title VII employer of public school teachers

because it devised and administered a test that was mandatory for

teachers to receive or retain teaching licenses. Gulino, 460 F.3d

at 363-64. The plaintiffs claimed that this test had a

discriminatory impact. The Second Circuit found the state could

not be considered teachers' Title VII employer because it lacked

control over public schools' daily operations, including ultimate

decisions about teacher employment. Id. at 366-70, 376-80. It

also contrasted the state's administrative role with the role that

the New York City Board of Education played as the plaintiffs'

direct employer. Id. at 380-81.16

The facts here weigh even more strongly against the state

being the "employer" of the plaintiffs. HRD exercised no control,

16
While Gulino did not expressly invoke the "de facto"
employer test, it considered, and rejected, all alternate tests for
an "employer," 460 F.3d at 373-79, and also rejected the notion
that the state was an "employer" under the common law test, id. at
379. Again, we focus on the reasoning of the opinion, not upon the
labels attached to the analysis.

-37-
direct or indirect, over the factors relevant to the common law

agency test, as we have discussed above. HRD therefore cannot be

deemed plaintiffs' "de facto" employer. Even if we were to

consider control over promotions as a factor relevant to the

definition of an employment relationship--though neither agency law

nor the EEOC guidelines mention it--plaintiffs' argument still

fails. For Massachusetts municipal police departments, the use of

HRD's state-prepared and administered promotions examination was

not mandatory. Municipalities could opt to use their own system of

evaluations for police promotions independent of HRD's examinations

process. And HRD did not control promotions decisions even for

municipalities that chose to use HRD-administered promotions

examinations. While HRD provided municipalities with a ranked list

of candidates and their corresponding scores on the promotions

examination, state law dictated that veterans and other preferred

candidates had to be ranked first, even above higher-scoring

candidates. Municipalities could choose among numerous candidates

on the eligibility list when filling a single vacancy, and HRD did

not dictate which individuals the city defendants or the MBTA were

to promote. The bypass process also gave them even greater control

over the ultimate promotions decision and allowed the municipality

to look to other factors beyond examination scores when making

promotion decisions. Indeed, municipalities historically relied on

the bypass process and their own flexibility in determining the

-38-
number of promotions to award to serve the aim of promoting more

African-Americans to police sergeant. See Cotter, 323 F.3d at

164-65.

Plaintiffs present two alternate theories why HRD should

be considered their "employer" under Title VII, even though HRD is

not an employer under the common law tests. First, plaintiffs

claim that under one of this court's precedents, Carparts Distrib.

Ctr. v. Auto. Wholesaler's Ass'n of New England, Inc., 37 F.3d 12

(1st Cir. 1994), so long as HRD controls even one significant

aspect of plaintiffs' employment, such as promotions, HRD can be

considered an "employer" for purposes of Title VII liability.

Second, they cite cases from other circuits that have articulated

an "interference theory" of employment. Under the interference

theory, a party that significantly participates in and interferes

with an employment relationship may be subject to liability as an

employer. We consider, and reject, each of these arguments in

turn.

Our decision in Carparts does not help plaintiffs. All

that Carparts held was that based on the allegations in the

complaint, it was inappropriate to grant dismissal under Rule

12(b)(6) in the absence of any factual development. 37 F.3d at 17.

We hypothesized that an entity might be an "employer" under the ADA

and related statutes like Title VII if, inter alia, it "exercised

-39-
control over an important aspect of [the plaintiff's] employment."

Id.

Carparts involved two private entities, an unusual set of

facts, and a particular procedural posture. Carparts, an

automotive parts wholesale distributor, brought suit under the ADA

against an automotive wholesalers' trade association and the self-

funded medical benefits plan the association offered to its

members. Id. at 14. As a member of the medical benefits plan,

Carparts had allegedly delegated all healthcare coverage decisions

to the plan's trustees. Our opinion suggested that if the trade

association and the medical benefits plan "exist[ed] solely for the

purpose of enabling entities such as Carparts to delegate their

responsibility to provide health insurance for their employees,"

these entities might have been "so intertwined" with Carparts that

they became an "employer" under the ADA. Id. at 17. Because the

case came before this circuit as an appeal from the district

court's grant of a motion to dismiss, we concluded that we lacked

sufficient facts to determine whether this test even applied to the

case at hand. Id. at 18. Carparts also did not rely on an

interference theory, which is plaintiffs' last straw.

Finally, plaintiffs argue that the term "employer" under

Title VII is broader than the common law test and includes an

entity that significantly impacts or interferes with an

individual's employment opportunities. Plaintiffs assert that

-40-
HRD's role in the promotions process "interferes" with

municipalities' employment of the plaintiffs, making HRD liable as

an "employer" under Title VII.

The plaintiffs invoke the Ninth Circuit's opinion in

Ass'n of Mexican-Am. Educators v. California, 231 F.3d 572 (9th

Cir. 2000) (en banc), in which a divided court held that California

and its teacher credentialing commission were employers of public

school teachers when the state administered a test that was a

prerequisite for a variety of teaching positions. Id. at 579-83.

The court so held despite the fact that plaintiffs and defendants

did not have a direct employment relationship and the fact that the

plaintiffs were directly employed by individual local school

districts. Id. at 580. We reject the reasoning of that court in

support of that holding, which not only rested on the interference

theory but failed to cite or discuss the Supreme Court's decisions

in Reid, Darden, and Clackamas.

The interference theory has no basis in our circuit law,

has never been adopted by this circuit, and contradicts Supreme

Court case law. We flatly reject it now. This circuit never

accepted the interference theory of employment even during its

early heyday.17 Indeed, in Camacho, we declined to adopt this

17
See Spirt v. Teachers Ins. and Annuity Ass'n, 691 F.2d
1054, 1063 (2d Cir.1982), vacated on other grounds, 463 U.S. 1223
(1983) (adopting a variant on the interference theory on the
express assumption that Congress intended to define the term
"employer" well beyond its general common law definition); Sibley

-41-
theory and suggested that its validity as an exception to the

common law test for employment was "dubious." 369 F.3d at 574 n.3.

And in Carparts, a much earlier decision, we considered the

interference theory but did not adopt it. 37 F.3d at 18.

We reject the interference theory as inconsistent with

the Supreme Court case law we have discussed. The interference

theory is entirely inconsistent with the use of the common law

criteria the Supreme Court has identified. Further, the conceptual

underpinning for the doctrine, that a broad reading of the terms

"employee" and "employer" are supposedly justified by the remedial

purpose of the statute, has been expressly rejected by the Supreme

Court in Clackamas. 538 U.S. at 446-47.

Most other circuits have also repudiated the interference

theory as an impermissible deviation from the common law agency

approach. See, e.g., Gulino, 460 F.3d at 373-76 (limiting Spirt

and rejecting the interference theory generally on the grounds that

they are at odds with the common law agency test and raise

constitutional concerns); Shah, 355 F.3d at 500 (suggesting that

the interference theory is not consistent with the common law

agency test); Bender v. Suburban Hosp., Inc., 159 F.3d 186, 189-90

(4th Cir. 1998) (narrowing Sibley to better comport with common law

Mem'l Hosp. v. Wilson, 488 F.2d 1338, 1340-41 (D.C. Cir. 1973)
(first articulating the interference theory on the ground that
Title VII's terms should be interpreted very broadly to achieve its
non-discriminatory ends).

-42-
agency principles on the grounds that Title VII, Supreme Court, and

circuit precedent so required).

Our decision that the state defendants are not

"employers" within the meaning of Title VII on these facts rests on

the statutory interpretation of Title VII mandated by the Supreme

Court and by our own precedent.18

The district court's denial of the state defendants'

motion to dismiss is reversed, and the case is remanded to the

district court for entry of an order of dismissal under Title VII

with prejudice with respect to the state defendants.

So ordered.

18
We do not think it helpful to reframe the applicable
common law test in terms of whether HRD was acting in a merely
"regulatory" capacity and so was not an employer. Still, the
reasoning of that line of cases, all rejecting employer status for
states, is helpful support. Those cases have held that when state
agencies exercised a significant role in the regulation of
salaries, hiring, and promotions, yet refrained from vicariously
making particular hiring or firing decisions or setting individual
salaries, the state was not functioning as an "employer." See,
e.g., Equal Employment Opportunity Comm'n v. Illinois, 69 F.3d 167,
171-72 (7th Cir. 1995) (holding that when the state fixed public
teachers' minimum salaries, set the number of days teachers must
work, the amount of sick leave and sabbatical leave, terms of
tenure, and other general factors pertaining to hiring, promotions,
and firing, but did not "tell[] the local school districts whom to
hire and fire and how much to pay them," it was not an "employer");
United States v. Bd. of Educ., 911 F.2d 882, 891-92 (3d Cir. 1990)
(holding that no employment relationship existed when the state
regulated teachers, including the dress code, but did not exercise
control over teachers' terms of employment in a non-regulatory
capacity); Fields v. Hallsville Indep. Sch. Dist., 906 F.2d 1017,
1020 (5th Cir. 1990) (finding no employment relationship when the
state administered a compulsory certification examination for
teachers but had no role in teachers' daily supervision).

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