Under the provision of G. L. c. 22, Section 9O, that one factor in promotions within the uniformed branch of the State police should be "a competitive promotional examination open to all candidates who have completed not less than one year of service in the next subordinate grade," such grade is determined by the pay grades listed in the "Job Groups" of Rule 16.1 of the Rules and Regulations for the State police, and a candidate who had completed not less than one year of service as a policewoman was eligible to take the promotional examination for the next higher pay grade of staff sergeant, although under the "order of ranks" established on August 29, 1966, in Rule 4.1 of the Rules and Regulations there were between the rank of policewoman and the rank of staff sergeant ranks in which she had not served. [98-100]
In cases in the Superior Court by a policewoman in the uniformed branch of the State police to establish her right to be promoted to the position of staff sergeant by the respondent Commissioner of Public Safety under the provision of G. L. c. 22, Section 9O, that appointment "to a vacancy occurring in any grade shall be made from the top three candidates on the appropriate list who are eligible for promotion," the record did not support the trial judge's findings and rulings that the respondent had discriminated against the petitioner solely because of her sex and had committed an unlawful employment practice where it appeared that, while the petitioner was one of the top three candidates on the promotion list for the grade of staff sergeant, the only persons promoted to vacancies in that grade had been the two candidates higher on the list than the petitioner, and it did not appear that those two were not qualified. 
Under the provisions of G. L. c. 22, Section 9O, that lists published by the Commissioner of Public Safety of members of the uniformed branch of the State police who are eligible for promotion to a specified grade "shall remain valid for a period of two years from the date of publication," and of Section 9R that the commissioner shall include in the Rules and Regulations of the Department of Public Safety "the time within which vacancies shall be filled," and of Rule 14.13 that vacancies "shall be filled . . . no later than sixty days" after a promotion list
has been published, it was held that a vacancy must be filled within sixty days after the publication of a promotion list if the vacancy occurs prior to the publication thereof, or within sixty days after the occurrence of the vacancy if it occurs within two years after the publication of the list. [101-102]
In cases in the Superior Court by a policewoman in the uniformed branch of the State police whose name was on a list for promotion to the grade of staff sergeant published by the respondent Commissioner of Public Safety and who was eligible for promotion to that grade for a period of two years from the date of publication under G. L. c. 22, Section 9O, it was held that, if it should appear that while she was still so eligible her name became the sole name on the promotion list at a time when a vacancy existed in the grade of staff sergeant, she would be entitled under Section 9R and Rule 14.13 of the Rules and Regulations for the State police to be promoted to the grade of staff sergeant within sixty days thereafter ; CUTTER, J., with whom WHITTEMORE, J., joined, dissenting.
In cases in the Superior Court by a policewoman in the uniformed branch of the State police eligible for promotion to the grade of staff sergeant, to establish her right to have the respondent Commissioner of Public Safety appoint her to a vacancy existing in such grade, where the trial judge found that the duties of a staff sergeant "range from the general command of various Troop Headquarters to such specialized fields as criminal investigation, photography and ballistics" and that the petitioner was qualified to perform some if not all of such duties, a contention of the respondent that the petitioner was not qualified to perform the duties of staff sergeant was without merit. [102-103]
PETITION for a writ of mandamus and BILL IN EQUITY filed in the Superior Court on May 12, 1967.
The cases were heard by Sullivan, J.
Richard E. Mastrangelo, Assistant Attorney General, for the Commissioner of Public Safety.
Lewis H. Weinstein (Judith L. Olans with him) for Grace V. Johnson.
SPIEGEL, J. These two cases were consolidated for trial in the Superior Court and are here on a consolidated appeal. One is a petition for a writ of mandamus and the other is a bill in equity for declaratory and injunctive relief. Grace V. Johnson will be referred to as the petitioner, and the Commissioner will be referred to as the respondent. The petitioner seeks to determine her right to take a promotional examination to the rank of staff sergeant in the uniformed branch of the State police and to be promoted from her present position of policewoman to the position of staff sergeant.
An interlocutory decree was entered requiring the respondent to permit the petitioner to take the promotional examination. In the mandamus action the trial judge ordered "that mandamus issue compelling respondent properly to perform his duty to administer the law in a non-discriminatory manner, and to promote petitioner to a vacancy in the position of staff sergeant if she should pass the promotional examination." In the equity suit a final decree was entered in which it was "declared, ordered, adjudged and decreed that respondent may not discriminate against petitioner because of her sex; that a policewoman such as petitioner in the pay grade of Sergeant may be promoted to the next higher grade of Staff Sergeant; that respondent is under a duty to take all necessary steps to ensure that petitioner's examination, written and oral, is graded with impartiality and free of discrimination; that respondent is under a duty to promote petitioner to a vacancy in the position of Staff Sergeant if she should pass the promotional examination . . .." The respondent appealed from the order in the mandamus case and from the final decree in the equity suit. The judge made findings of fact and rulings of law. The evidence is reported.
We summarize the pertinent findings. Since May 22, 1956, the petitioner has been a member of the uniformed branch of the State police with the rank of policewoman at the pay scale of special officer sergeant. Her duties are primarily in the field of criminal investigation, particularly of offences involving women and children. Her performance of these duties has always been exemplary.
On February 28, 1967, pursuant to the provisions of G. L. c. 22, Section 9O, as inserted by St. 1965, c. 785, Section 2, notice of the first written examination for promotion to all ranks within the uniformed branch was announced. The petitioner seasonably applied for the examination for promotion to the position of technical sergeant. Her application was received on March 10, 1967. On April 4, 1967, the respondent issued a departmental bulletin which, inter alia, abolished the rank of technical sergeant and incorporated it
within the rank of staff sergeant. The petitioner's application was rejected on April 12, 1967. She was permitted to take the written portion of the examination for promotion to staff sergeant pursuant to the interlocutory decree entered on May 19, 1967.
Prior to August 29, 1966, Rule 4.1 of the "Rules and Regulations for the Government of the Massachusetts State Police -- Uniformed Branch" (hereinafter referred to as Rules and Regulations) established in pertinent part the following "order of ranks" within the uniformed branch: "Staff Sergeant, Technical Sergeant, Detective Sergeant, Sergeant, Special Officer Sergeant, Policewoman, Corporal, Trooper." On August 29, 1966, a new Rule 4.1 was promulgated. It established in pertinent part the following "order of ranks": "Staff Sergeant, Technical Sergeant, Detective Sergeant; Sergeant, Special Officer Sergeant; Corporal; Trooper; Policewoman." Rule 16.1 of the Rules and Regulations defines "promotions" as a "change from duties of one rank to the duties of a higher rank, which shall involve a change in salary to the rates of a higher rank." Rule 16.1 establishes in pertinent part the following pay scale for the ranks and grades:
|15||S.P. Staff Sergeant|
|15||S.P. Technical Sergeant|
|15||S.P. Detective Sergeant|
|14||S.P. Special Officer Sergeant|