Sullivan v. City of Springfield

United States Court of Appeals
For the First Circuit

No. 08-1817

KEVIN SULLIVAN; VINCENT DUDLEY; MARK MEHRINGER;
JASON SLEEPER; MICHAEL TROMBLEY,

Plaintiffs, Appellants,

v.

CITY OF SPRINGFIELD,

Defendant, Appellee.

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

[Hon. Michael A. Ponsor, U.S. District Judge]

Before

Lynch, Chief Judge,
Selya and Siler,* Circuit Judges.

Alfred Gordon with whom Harold L. Lichten and Pyle, Rome,
Lichten, Ehrenberg & Liss-Riordan, P.C. were on brief for
appellants.
Maurice M. Cahillane, Associate City Solicitor, with whom
Edward M. Pikula, City Solicitor, was on brief for appellee.

March 24, 2009

*
Of the Sixth Circuit, sitting by designation.
 LYNCH, Chief Judge. Kevin Sullivan, Vincent Dudley, Mark

Mehringer, Jason Sleeper, and Michael Trombley are current and

former police officers who were hired by Springfield, Massachusetts

("the City") in 1997 and then laid off in 2003. Plaintiffs were

all later recalled by the City. In 2005, they sued the City,

asserting claims under 42 U.S.C. § 1983, inter alia.

Plaintiffs, who are white, claimed that "race-based

determinations" made by the City during the hiring process in 1997

were not permitted under either a consent decree or the U.S.

Constitution. They alleged these 1997 determinations harmed them

by assigning them to lower seniority ranks than minority officers

hired at the same time. Plaintiffs claimed that, if the City had

not made these impermissible race-based determinations in 1997,

they would have had higher seniority in 2003 and would not have

been laid off or would otherwise have been recalled sooner.

On cross motions, the district court granted summary

judgment to the City on two grounds. It found that plaintiffs had

not shown facts establishing any race-based causal connection

between defendant's actions and the plaintiffs' injuries. It also

found the City's actions were within the scope of the City's

ongoing obligations under a consent decree in a 1970s case known as

Castro v. Beecher (Castro I), 334 F. Supp. 930 (D. Mass. 1971).

See Sullivan v. City of Springfield, 555 F. Supp. 2d 246, 256, 258

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(D. Mass. 2008). We affirm the district court's decision on both

grounds.

I.

A. The Castro Consent Decree

The history of the Castro consent decree sets the stage.

In 1970, eight minority plaintiffs,1 who had applied unsuccessfully

to become Boston police officers, brought suit against the

Massachusetts Civil Service Division, an agency which has since

become known as the Human Resources Division ("HRD"), the name we

use. The suit alleged discriminatory hiring and recruiting

practices, which violated the Fourteenth Amendment and had led to

a disproportionately low number of minority police officers in

Boston. See Castro I, 334 F. Supp. at 934-35; see also Deleo v.

City of Boston, No. 03-12538, 2004 U.S. Dist. LEXIS 24034, at *4

(D. Mass. Nov. 23, 2004) ("At the time, the black population of

[Boston] was approximately 16.3% of the total population, but about

3.6% of the Boston police force was black.").2

1
The group was composed of six black applicants and two
Hispanic applicants. For the purposes of the Castro decree and the
surrounding litigation, the term "minority" referred only to black
and Hispanic applicants, while "non-minority" referred to
applicants of all other ethnicities; we use these terms accordingly
in this opinion. See Quinn v. City of Boston, 325 F.3d 18, 24 n.1
(1st Cir. 2003) (describing the use of the terms in parallel
litigation involving firefighters).
2
For a more detailed history of the consent decree, see
Deleo, 2004 U.S. Dist. LEXIS 24034, at *3-6, and Castro v. Beecher
(Castro V), 522 F. Supp. 873, 874-76 (D. Mass. 1981).

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 The district court in Castro I rejected the plaintiffs'

claims as to several of the eligibility requirements. See, e.g.,

Castro I, 334 F. Supp. at 940-41 (discussing the height and swim

test requirements). It also declined to certify the plaintiffs'

requested class. Id. at 947-48. It concluded, however, that the

Massachusetts Civil Service Police Entrance Examination -- the

written examination administered by HRD to police applicants --

discriminated against minorities who "did not share the prevailing

white culture." Id. at 943. The court barred the use of the

existing examination and set out guidelines for creating a non-

discriminatory one. See id. at 944-45; see also Castro v. Beecher

(Castro II), 459 F.2d 725, 729 (1st Cir. 1972).

The decision was appealed to this court, which held that

class certification should have been granted. Castro II, 459 F.2d

at 732. It agreed that the examination was discriminatory, but

held that the district court's remedy had been too narrow, and

remanded. This court stated that, "[i]n our view, if relief in the

near future is to be more than token, further provision is

necessary," and that the relief could include the creation of a

priority pool for minority applicants who passed a non-

discriminatory examination and who could be hired according to a

preferential ratio. Id. at 737. While recognizing that "any such

effort is bound to be a crude one and must be pursued with

sensitivity," this court stated that "preferential status for the

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priority pool will yield a significant increment of [minority]

police officers in the near term." Id. at 736-37.

Following the remand, and in the context that use of the

extant examination was illegal, the parties entered into what has

now come to be known as the Castro consent decree. The decree was

approved by the district court in 1973. Castro v. Beecher (Castro

III), 365 F. Supp. 655, 660 (D. Mass. 1973). The court stated that

the decree was intended to "counteract the unconscious lopsidedness

of the recruitment of the past" by "giv[ing] a . . . priority to

[minority candidates] who have shown themselves qualified." Id. at

659. In entering a consent decree, the defendant state authorities

may well have agreed to relief beyond what the Constitution would

have provided as a remedy. See United States v. Charles George

Trucking, Inc., 34 F.3d 1081, 1091 (1st Cir. 1994). This is a

point we need not decide.

The consent decree was subsequently revisited and

modified. See Castro V, 522 F. Supp. at 875; Castro v. Beecher

(Castro IV), 386 F. Supp. 1281, 1285-86 (D. Mass. 1975). The

amended remedy was explicitly modeled on the consent decree adopted

in a parallel case involving Massachusetts firefighters. See

Castro IV, 386 F. Supp. at 1286 (citing Boston Chapter, NAACP, Inc.

v. Beecher, 371 F. Supp. 507 (D. Mass.), aff'd, 504 F.2d 1017 (1st

Cir. 1974)); see also Castro V, 522 F. Supp. at 875.

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 The Castro consent decree required HRD to prepare

certification lists by creating two groups. The first, "Group A,"

would "consist of all Black and Spanish-surnamed applicants who

pass a future police entrance examination and are otherwise

qualified for appointment on the basis of existing requirements."

The second, "Group B," would "consist of all other persons who pass

a future police entrance examination and are otherwise qualified

for appointment on the basis of existing requirements." When an

appointing authority, such as the City, sought to hire police

officers, it would send a request to HRD, which would send the

appointing authority a certification list ordered "on the basis of

one candidate from Group A for every candidate certified from Group

B." In making its hiring decisions, if the appointing authority

chose to reject a candidate in favor of another candidate who

appeared lower on the HRD list, HRD would not approve the

appointment unless the appointing authority "furnished [HRD] with

a written statement of [its] reasons" for doing so; HRD would then

provide a "written statement of those reasons to . . . the

candidate upon written request."

The Castro decree was to remain in effect for a given

city until that city's police department "achieves a complement of

minorities commensurate with the percentage of minorities within

the community." The decree accordingly continues to apply to

Springfield. The plaintiffs agree that is so. Boston is no longer

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under the decree. See Deleo, 2004 U.S. Dist. LEXIS 24034, at *26

(finding that Boston had reached this goal for minority

representation).

B. Facts Underlying the Present Case

The facts in the present case are undisputed, and it is

undisputed that there are gaps in the evidence about plaintiffs'

hirings and layoffs. This may in part be attributable to the fact

that plaintiffs did not bring suit until 2005, some eight years

after they were hired.3

In 1996, Springfield decided to hire sixty new police

officers. Its police commission chairman requested a list of

eligible candidates from HRD. Eligibility meant something more

limited however; in the intervening years, HRD had delegated to the

local appointing authorities most of the responsibility for

determining the eligibility of candidates for eligibility criteria

other than the examination.

On January 13, 1997, in response to the City's request,

HRD generated a list, Certification No. 961295, of 374 candidates

who had passed a written examination. Under the Castro decree, the

list placed the minority candidate who had scored highest on the

test first, followed by the non-minority candidate who had scored

highest on the test, followed by the second highest scoring

3
Because we affirm on other grounds, we do not consider
defendant's argument that plaintiffs' action was barred by the
statute of limitations.

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minority candidate and the second highest scoring non-minority

candidate, and so on, in alternating order.4

After the City received the HRD examination certification

list, it asked those candidates who were still interested in being

considered for the job to come in and sign the certification list.

The record does not establish which candidates signed the list, and

which were eliminated from consideration for failure to do so.

Although an appointing authority such as the City would generally

have sent the original, signed certification list back to HRD, the

relevant certification list –- or other evidence as to which

candidates signed and which did not -- is not in the record.

HRD retained oversight of the process used by local

appointing authorities to ensure compliance with its rules. The

City applied a series of hiring prerequisites to the remaining

candidates to decide which candidates would receive offers and be

able to go through the police academy. For each candidate, the

City ran a background check,5 a residency check and an interview;

if the candidate was not eliminated at this point, he or she would

be given a conditional offer of employment, after which he or she

4
The HRD list did not include applicants' scores. As a
result, there is no direct evidence that minority individuals with
lower exam scores had higher positions on the list than higher
scoring non-minorities.
5
Candidates were eliminated if they did not have or could
not obtain a Massachusetts driver's license, or had felony
convictions, or lied about being Springfield residents.

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would be further subject to a medical examination, a psychological

examination, and a physical abilities test.

Captain William Cochrane, who from 1996 to 2001 was the

commanding officer of the Academy for the Springfield Police

Department, was responsible for this process. Cochrane and his

staff evaluated and eliminated candidates on the basis of the

qualifications listed above. Once they had a list with enough

qualified candidates to meet the City's hiring goals, Cochrane

passed this list to the chief's office, which then filled out an

Authorization of Employment Form 14 ("Form 14"). Form 14, which

was sent to the state HRD on May 5, 1997, contained the names of

officers who had been selected for appointment. In addition to

candidates who were on the HRD certification list, Form 14 included

the names of eight former police cadets as well as two other

officers whose employment applications were processed differently.

Cochrane testified at deposition that in carrying out

this process, he and his staff attempted to comply with the

requirements of the Castro decree. To this end, he had spoken with

HRD "many, many times to try and clarify how we were to proceed."

Cochrane testified that, in order to comply with what he understood

as the requirements of the Castro decree, after he received the

original list from HRD, he and his staff worked off of two separate

lists -- one with the minority candidates in ranked order and the

other with the non-minority candidates in ranked order. If a

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minority candidate was eliminated from consideration under the

qualification procedures, Cochrane and his staff would proceed to

considering the next minority candidate. Likewise, if a non-

minority candidate was eliminated, Cochrane and his staff would

proceed to considering the next non-minority candidate. Cochrane

testified that his memory was that, at the end of the process,

these two lists were combined in alternating order -- one minority

candidate followed by one non-minority candidate. That racially

reordered list was then given to the chief's office, which filled

out Form 14 accordingly. That Form 14 was placed into evidence.

The Form 14 shows that the City did not hire on a one-for-one

minority-to-non-minority basis. Rather, in the spring of 1997, the

City hired about twice the number of white officers as minority

officers, excluding police cadets. If cadets are counted, the City

hired more than twice the number of white officers as minority

officers.

Contrary to Cochrane's memory, Form 14 was not in fact

organized on a one-to-one minority-to-non-minority basis. The

district court justifiably concluded that Cochrane's memory was

simply incorrect. Sullivan, 555 F. Supp. 2d at 253. Even

discounting the eight cadets and the two other candidates who were

treated separately, Form 14 contained twenty-one non-minority

candidates and twelve minority candidates. The minority candidates

are not in alternating order. Within each group, the candidates

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were in the same rank order as they were on the original HRD list.

But some non-minority candidates, including the plaintiffs,

appeared lower on Form 14, relative to some minority candidates,

than they did on the original HRD list. As the district court

noted, there is no evidence as to when (if ever) the City created

one or more reordered one-for-one lists. And there is no evidence

that the ordering on the list was based on race.

The City assigned badge numbers according to the order on

Form 14. It also simultaneously assigned seniority according to

officers' badge numbers; the greater the officer's seniority, the

lower the badge number. Thus, those who appeared lower on Form 14

were assigned less seniority than those who appeared higher on Form

14. Plaintiffs' seniority dates were assigned on this basis.

Almost six years later, in early 2003, the City laid off

approximately seventy-five police officers. It is undisputed that

the layoff order was determined purely by seniority -- that is, by

badge number, and not by race. The City laid off the five

plaintiffs over a two-week period beginning March 13, 2003. Later

that year, and through the end of 2004, the City obtained more

funding through grants and retirements, and was able to recall all

of the laid-off police officers who wanted to return. As a result,

plaintiffs were all recalled. It is undisputed that the recall

order was also based on seniority, not race. Because both the

layoffs and the recalls were conducted on the basis of seniority,

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officers with less seniority were laid off sooner and recalled

later than those with more seniority.

On January 11, 2005, plaintiffs brought their § 1983

suit, claiming that they were assigned higher badge numbers in

1997, and thus were given less seniority, on the basis of

impermissible race-based determinations. That is, they argued that

if the City had not racially reordered the HRD list as it was going

through the various qualification procedures, they would have been

hired with greater seniority, and thus would have been either not

laid off at all in 2003, or would have been recalled more quickly

than they were. As the district court viewed their claim, the

plaintiffs were arguing that the "failure to assign seniority based

on the original, alternating HRD certification, . . . instead [of]

the Form 14, violated both the Castro decree and the Equal

Protection Clause." Sullivan, 555 F. Supp. 2d at 255.

Plaintiffs alleged that as a result of the City's

actions, they lost, among other things, back pay, overtime,

details, and health insurance contributions. They sought

compensatory damages, back pay, front pay, and compensation for

lost overtime and details. Plaintiffs' claims of harm necessarily

rest on their contention that the original assignment of seniority

was discriminatory. They do not challenge the validity or

constitutionality of the City's continuing obligations under the

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Castro decree, but argue that the City's actions were not within

the scope of the decree.

On November 3 and December 19, 2005, the parties filed

cross motions for summary judgment. On January 3, 2007, the

district court denied both motions without prejudice, citing

certain gaps in the record, but invited the parties to file

substitute motions that resolved these gaps. Plaintiffs filed a

new motion for summary judgment on May 14, 2007, which attempted to

clarify the record. The City filed a cross motion for summary

judgment on September 5, 2007. On March 28, 2008, the district

court denied plaintiffs' motion and granted defendant's motion; the

court issued a second memorandum on May 23, 2008 reiterating its

conclusion and explaining its reasoning more fully. Sullivan, 555

F. Supp. 2d at 246. The court noted that there was no material

dispute of fact. Id. at 247. It found that plaintiffs had not

established the causal connection between defendant's actions and

their injuries because there appeared to be no racial reordering of

Form 14. See id. at 253-54. Furthermore, the court held that even

if this causal connection could be established, the City's actions

were within the scope of the Castro decree. See id. at 258.

Plaintiffs timely appealed.

II.

We review de novo the grant of summary judgment.

Rodriguez v. Am. Int'l Ins. Co. of P.R., 402 F.3d 45, 46 (1st Cir.

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2005). All reasonable inferences must be drawn in favor of the

non-moving party; still, we ignore "conclusory allegations,

improbable inferences, and unsupported speculation." Prescott v.

Higgins, 538 F.3d 32, 39 (1st Cir. 2008) (quoting Medina-Muñoz v.

R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990)) (internal

quotation marks omitted). Summary judgment is appropriate where

"there is no genuine issue as to any material fact" and "the movant

is entitled to judgment as a matter of law." Fed. R. Civ. P.

56(c); see also New Fed Mortgage Corp. v. Nat'l Union Fire Ins. Co.

of Pittsburgh, PA, 543 F.3d 7, 11 (1st Cir. 2008).

Plaintiffs do not challenge the application of the Castro

decree by the City. Cf. Mackin v. City of Boston, 969 F.2d 1273,

1275 (1st Cir. 1992). They concede that to the extent defendant's

actions were within the scope of the decree, they have no claim for

relief. Plaintiffs' argument is that defendant made race-based

employment decisions that went beyond the dictates of the Castro

decree. These actions, they urge, must be subject to strict

scrutiny. See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist.

No. 1, 127 S. Ct. 2738, 2751 (2007) ("It is well established that

when the government distributes burdens or benefits on the basis of

individual racial classifications, that action is reviewed under

strict scrutiny."). Plaintiffs argue that defendant's actions

cannot withstand strict scrutiny.

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 Plaintiffs' claims focus on the actions of Cochrane. In

his deposition, Cochrane stated that he and his staff reordered the

list sent to the City by HRD in 1997 in order to maintain the one-

to-one minority-to-non-minority order as candidates were eliminated

from the list. If a minority candidate was eliminated, he was

replaced by the next highest minority candidate; if a non-minority

candidate was eliminated, he was replaced by the next highest non-

minority candidate. Plaintiffs claim that because of this race-

based reordering, they were hired with higher badge numbers -- that

is, with less seniority -- than they would have had if hiring

proceeded purely according to the order of the HRD list. And

although Cochrane claimed the reordering was done to comply with

the Castro decree, plaintiffs argue the decree did not allow any

race-based ordering beyond that already done by HRD.

A. Causation

Plaintiffs' opening argument on appeal is that they are

entitled to strict scrutiny of any governmental decision based on

race. See Parents Involved, 127 S. Ct. at 2751; Johnson v.

California, 543 U.S. 499, 505-06 (2005). However, they have failed

to produce evidence that the governmental decisions here were based

on race.

In order to have a valid claim under § 1983, plaintiffs

must show that defendant's actions were the cause in fact of the

alleged constitutional deprivation. Gagliardi v. Sullivan, 513

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F.3d 301, 306 (1st Cir. 2008) (citing Rodriguez-Cirilo v. Garcia,

115 F.3d 50, 52 (1st Cir. 1997)); see also 1 S. Nahmod, Civil

Rights and Civil Liberties Litigation § 3:110 (4th ed. 2008). It

is not enough for plaintiffs to show Cochrane may have used an

impermissible racial classification; there must be a causal link

between this and the adverse employment action -- that is,

plaintiffs' being given their particular seniority ranking on

hiring. See Gagliardi, 513 F.3d at 306-08; Back v. Hastings on

Hudson Union Free Sch. Dist., 365 F.3d 107, 125 (2d Cir. 2004)

("[On an alleged Equal Protection Clause violation], the plaintiff

must show more than invidious intent. She must also 'demonstrate

that the causal connection between the defendant's action and the

plaintiff's injury is sufficiently direct.'" (quoting Gierlinger

v. Gleason, 160 F.3d 858, 872 (2d Cir. 1998))). To survive summary

judgment, plaintiffs were required to offer sufficient evidence to

allow a reasonable fact finder to conclude defendant's actions were

based on race and this caused their injuries. See Soto v. Flores,

103 F.3d 1056, 1065-66 (1st Cir. 1997); see also Rodriguez-Cirilo,

115 F.3d at 52-53; Back, 365 F.3d at 125-26. Plaintiffs have

failed to do so.

To the extent plaintiffs continue to argue that the City

was obliged not to alter the HRD list or that any alterations to it

were race-based, the argument is simply wrong. The HRD list was

based only on examination results; all other eligibility criteria

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were left to the City to determine and on that basis the list was

altered, introducing a large number of variables other than race.

It is undisputed that seniority was assigned purely on

the basis of Form 14, which the City sent to HRD on May 5, 1997.

It is also undisputed that plaintiffs' names were lower on Form 14,

relative to certain minority candidates, than they were on the

original list HRD sent to the City. But the plaintiffs have not

shown this was based on race. Plaintiffs introduced evidence --

Cochrane's deposition -- that the City at some point reordered the

HRD list on the basis of race as it was going through the

qualification process. There is no evidence in the record,

however, beyond plaintiffs' speculation, from which a fact finder

could reasonably determine what effect Cochrane's reordering of the

list the City received from HRD had on the list that was ultimately

sent back to HRD, Form 14. There is a break in the causal chain

between the original HRD list, Cochrane's reordering, and Form 14.

Plaintiffs rely on Cochrane's testimony that he and his

staff split the original HRD list into two lists, one for

minorities and one for non-minorities; that they worked off these

separate lists during the qualification process; and that they then

created the final list that was the basis for Form 14, at the end

of the process, by recombining the two lists, dovetailing minority

and non-minority candidates.

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 But the record evidence does not stop with Cochrane's

account. The actual order of persons on the Form 14 sent by the

City to HRD is in evidence and it does not correspond to Cochrane's

description. Discounting the eight cadet candidates and candidates

Jose Diaz and Brian Elliot, who were all handled under separate

procedures, the names on Form 14 were not organized in one-to-one

minority-to-non-minority order; nor are there equal numbers of

minority and non-minority candidates. Thus, it cannot be that Form

14 was created simply by combining the two race-segregated lists.

Even assuming a race-based, one-to-one interim list was

created at some point in the process, plaintiffs have presented no

evidence they were lower on this list than they were on the HRD

list, or that this was ultimately the reason why plaintiffs were

lower on the final Form 14 list. Inferences must be reasonable

ones and it is plaintiffs' burden to present enough evidence for a

trier of fact to infer that there was a causal connection as to

both lists. Speculative hypotheses are not enough.

We agree with the district court that plaintiffs'

speculation that there may be a causal chain, without supporting

evidence, is insufficient to survive summary judgment. See

Gagliardi, 513 F.3d at 307 (upholding dismissal under Fed. R. Civ.

P. 12(b)(6) of a § 1983 suit where plaintiff's theory of causation

was "conclusory and . . . not substantiated by reasonable inference

from the well-pleaded facts"); Rodriguez-Cirilo, 115 F.3d at 53

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(upholding grant of summary judgment in § 1983 suit in which

plaintiffs "offered no competent evidence that could have supported

a finding" of but-for causation).

Plaintiffs try a different argument: that summary

judgment was premature because there are documents that could be

brought before the court that could prove the causal connection.6

There are several reasons to reject the argument.

First, not only did the plaintiffs not argue to the

district court that summary judgment was premature, they

affirmatively requested that the court resolve the case on the

existing evidence; plaintiffs filed their summary judgment motion

before the City filed its cross motion for summary judgment.

Plaintiffs thought the statements in Cochrane's deposition were

sufficient not only to defeat defendant's summary judgment motion

but to establish their case as a matter of law. The district court

disagreed, and "plaintiff[s'] disappointment with that ruling is

understandable," but there is no reason for us now to "turn back

6
Plaintiffs are correct that such documents at one point
existed, but they have not produced them. For example, at some
point after receiving the original HRD list, but before filing the
final Form 14, the City would have filed with HRD a Form 16II; this
form would have indicated which candidates were removed from the
list for failure to appear and sign the initial certification or
eliminated for failure to meet one of the other requirements for
employment. The City would have also returned to HRD the original
certification list, signed by those applicants willing to accept
certification. Beyond this, there is the final list that Cochrane
would have given the chief's office, and any interim lists that
Cochrane and his staff may have created.

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the clock and give [them] a further opportunity to reconfigure the

record." Vargas-Ruiz v. Golden Arch Dev., Inc., 368 F.3d 1, 5 (1st

Cir. 2004); see also Meehan v. Town of Plymouth, 167 F.3d 85, 92

n.7 (1st Cir. 1999).

Second, the fact that such documents at one point existed

and would likely have been in the possession of defendant or HRD

did not relieve plaintiffs of their burden to produce evidence

necessary to support a jury verdict, see Singh v. Blue Cross/Blue

Shield of Mass., Inc., 308 F.3d 25, 32-33 (1st Cir. 2002).

Plaintiffs never filed a Rule 56(f) affidavit or otherwise

represented that consideration of summary judgment was premature.

See Fed. R. Civ. P. 56(f) (providing that, "[i]f a party opposing

[a summary judgment] motion shows by affidavit that, for specified

reasons, it cannot present facts essential to justify its

opposition, the court may . . . order a continuance to

enable . . . other discovery to be undertaken"). Plaintiffs had a

full opportunity to conduct discovery. See Vargas-Ruiz, 368 F.3d

at 3 (stating that when "a party professes an inability to respond

to a summary judgment motion because of incomplete discovery, his

recourse is by way of Fed. R. Civ. P. 56(f)"). Plaintiffs cannot

claim to be surprised that the procedures by which the City handled

HRD certification list No. 961295 and the effect these procedures

had on plaintiffs were at issue; indeed, these issues were central

to the case from the start.

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 Plaintiffs counter that the necessity of such evidence

only became apparent when the district court, in ruling on the

summary judgment motions, made reference to two documents not

contained in the record -- an unpublished stipulation of facts

between the parties in the original Castro v. Beecher case and a

Certification Handbook prepared by HRD. The court's use of these

documents will be discussed further below, but plaintiffs' argument

fails in this context. The documents used by the district court

were unrelated to the question of whether Cochrane's actions could

be established as the cause in fact of plaintiffs' injuries.

B. Scope of the Consent Decree

The district court held that the City's actions were part

of its obligations under the Castro consent decree. Plaintiffs

argue that defendant's actions went beyond the scope of the Castro

decree, which they say should be narrowly read. They argue the

requirements of the Castro decree were fulfilled when, following

the written examination, HRD created a list of candidates that

alternated minority and non-minority candidates; any race-based

reordering by the City after it received the list from HRD was

impermissible.

Plaintiffs offer two arguments in support of their

interpretation of the consent decree. First, because the consent

decree was intended to remedy the effects of a discriminatory

written examination, it contemplated race-based reordering only

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after that stage of the process, and not also after candidates were

eliminated in later stages, such as the medical or psychological

examinations. Second, even if the consent decree did allow further

reordering, such reordering could be done only by HRD, and not by

the City. We disagree on both counts, as the district court did,

see Sullivan, 555 F. Supp. 2d at 256-58.

The language of the consent decree requires the creation

of two separate lists: one of minority applicants "who pass

a . . . police entrance examination and are otherwise qualified for

appointment on the basis of existing requirements"; and another of

non-minority candidates "who pass a . . . police entrance

examination and are otherwise qualified for appointment on the

basis of existing requirements." (Emphases added.) It then

specifies that "candidates shall be certified on the basis of one

candidate from [the minority list] for every candidate certified

from [the non-minority list]."

The language of the decree, evidence concerning past

practices under the decree, and common sense regarding the intended

operation of the decree are relevant considerations in interpreting

the scope of the Castro consent decree. See Mackin, 969 F.2d at

1276. All these considerations support the conclusion that the

City's actions were well within the scope of the Castro decree.

Looking at the language of the consent decree, the most

natural reading does not support plaintiffs' contention that race-

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based reordering under the decree can occur only once, immediately

following the written examination.7 The parties to the Castro

decree agreed to a remedial approach that is not strictly limited

to addressing the written examination problem. The language of the

Castro decree clearly allows for race-based reordering to occur not

merely after the written examination, but also after candidates

have been evaluated and eliminated on the basis of other

qualifications.

The language of the Castro decree also does not say that

HRD could not delegate its authority to carry out such reordering

to the City. Indeed, the decree explicitly provides for

cooperation between HRD and the coordinating authority in carrying

out the decree. Once HRD has created the original certification

list, an appointing authority may still "reject[] the appointment

of [a] candidate higher on the list" in favor of a candidate lower

on the list if it "furnishes [HRD] with a written statement of

[its] reasons" for doing so. Such language is not consistent with

plaintiffs' claim that the drafters of the Castro decree intended

7
It is true that the litigation that led to the creation
of the Castro decree was focused on the discriminatory effects of
the written examination. See Castro III, 365 F. Supp. at 655-56;
see also Castro II, 459 F.2d at 735-38. However, because consent
decrees are "animated not only by the parties' legal claims but
also by the parties' consent," it is not impermissible for a
consent decree to extend beyond the "possible bounds of a decision
issued directly by the trial court." Charles George Trucking, 34
F.3d at 1091.

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to strictly limit HRD's authority to share its responsibilities

under the decree with appointing authorities.

Past practices do not support either plaintiffs' argument

as to the order in which other qualifications could be determined

or their non-delegation argument. Early on, it was recognized that

HRD could take other qualifications, beyond the written exam, into

account before creating the alternating list. For example, in

approving the original consent decree, the district court in Castro

III stated that the list of minority applicants who passed the 1972

written examination would be "exclusively composed of persons who

have a high school diploma" and who "measure up prima facie to

reasonable requirements for the job of police patrolman." Castro

III, 365 F. Supp. at 658. Two years later, the district court in

Castro IV recognized that statutory residence preferences were

preserved under the Castro decree, but that this preference "and

like rankings," Castro IV, 386 F. Supp. at 1285 (quoting Castro

III, 365 F. Supp. at 658), are to be taken into account only

"within each of the four groups established by the decree," id.

Further, it was recognized in the litigation leading up

to the creation of the Castro decree that HRD and the appointing

authorities would have to work together in order to effectuate the

decree. See Castro II, 459 F.2d at 737 ("[T]he remedial approach

. . . [of the decree] cannot be fully effective without the

cooperation of the appointing authorities in the various police

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forces."). This high degree of cooperation is apparent in

Cochrane's statement that HRD had spoken with him "many, many

times" in order to "clarify how we were to proceed" under the

Castro decree.8

Finally, the logic inherent in the decree undercuts

plaintiffs' argument. Although the Castro decree was based on a

finding that the written entrance examination was discriminatory,

see Castro II, 459 F.2d at 735-36, under our circuit precedent,

fixing the problem of discriminatory examinations was "not an end

in [itself] but merely a means toward achieving the decree's actual

objective: rough parity," Mackin, 969 F.2d at 1277. Our decision

in Castro II rejected the argument that the decree was intended

only to address problems related to the written examination, as

plaintiffs claim, noting that "if relief in the near future is to

be more than token, further provision is necessary." Castro II,

459 F.2d at 737; see also Mackin, 969 F.2d at 1277 & n.3.

Since the Castro decree allowed HRD to reorder the

certification list based on race after taking into account

8
Plaintiffs argue that we should not look to past
practices in this case because the City was not a party to the
original Castro litigation, so its actions in following the decree
do not evidence the intent of the decree's framers. Regardless of
whether the City was a party to the original litigation, the past
practices we have examined are not those of the City but those of
HRD -- in taking other qualifications into account prior to
creating the alternating list and in sharing its responsibilities
with appointing authorities. HRD was a party to the original
litigation. Nor is evidence of past practices made irrelevant by
the fact that practices have changed over time.

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qualifications beyond the written examination, moreover, there is

no reason to think that it would bar HRD from delegating the same

task to an appointing authority such as the City. See Mackin, 969

F.2d at 1276 ("We think it is farfetched to assume that the

district court or the parties intended the decree to work in so

quirky a fashion.").9

III.

Plaintiffs also argue that the district court

impermissibly went beyond the record in issuing its summary

judgment ruling. Plaintiffs' claim focuses on the court's use in

its May 23, 2008 order of two documents, neither of which had been

presented by the parties. First, the court referenced an

unpublished stipulation of facts between the parties in the

original Castro v. Beecher case. Second, the court referenced a

Certification Handbook prepared by HRD to give guidance to

appointing authorities on hiring under the Castro decree; the

Handbook was apparently prepared after the hirings at issue in this

case took place. Plaintiffs argue that the court could not base

its summary judgment conclusion on this new evidence, which

plaintiffs did not have the opportunity to challenge or overcome.

9
We need not consider the City's argument that liability
cannot attach because there is no evidence that Cochrane was acting
out of any motivation other than his desire to adhere to his
understanding of the legal requirements of the Castro decree.

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 Even if the court should have taken judicial notice of

these documents before it considered the summary judgment motions,

see generally 10A Wright, Miller & Kane, Federal Practice and

Procedure § 2723, at 391-97 (3d ed. 1998), there was no prejudice

to the plaintiffs. There was no reversible error because "[t]he

critical facts upon which the court relied were either squarely

presented or plausibly inferable" from the undisputed facts.

Forcier v. Metro. Life Ins. Co., 469 F.3d 178, 186 (1st Cir. 2006)

(emphasis added). Neither document was an essential ingredient of

the analysis, which would have reached the same result without

them.

IV.

Entry of judgment for the City is affirmed.

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