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Judge was biased in hiring decision

By Martine Powers
Globe Correspondent / August 25, 2011

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A Massachusetts judge with a history of combating corrupt employment practices ignored the recommendation of a hiring panel and passed over a female employee for a promotion because of her gender, the state’s chief civil rights agency found this month.

The actions of Robert Mulligan, the state’s chief justice for administration and management, were probably “colored by gender stereotypes,’’ the Massachusetts Commission Against Discrimination concluded in awarding more than $200,000 to a woman who worked in the court system for more than two decades.

In a statement yesterday, Mulligan said he had chosen the best person for the job.

The judge tried last year with mixed success to crack down on patronage and nepotism within the state’s Probation Department. Now, Mulligan’s own hiring practices are being found at fault. A three-member hiring panel for the state’s trial court system determined that Mary Jane McSweeney, who spent 14 years as a regional facilities manager for seven courthouses in Greater Boston, was the superior candidate for a job as operations and maintenance supervisor with the Plymouth District Court.

Mulligan rebuffed the panel’s recommendation and instead hired a man who was the third choice of the selection panel. The judge said during testimony before MCAD that he decided not to promote McSweeney because he feared that members of the hiring panel were friends of McSweeney’s.

But the hearing officer for the civil rights agency, Judith Kaplan, said in her Aug. 11 ruling that the hiring panel’s recommendation was informed solely by McSweeney’s record as a court employee.

“The evidence is clear that any move to promote [McSweeney] or give her an inside edge was motivated solely by the desire to promote a career employee who had demonstrated the skills and abilities and leadership to competently perform the job,’’ Kaplan wrote.

Mulligan’s decision to overrule the hiring panel, Kaplan declared, was a product of unconscious bias and indicated views “about a woman’s ability to perform a top managerial job that is traditionally held by men,’’ she said in the ruling.

Mulligan was on vacation yesterday and not available for an interview, his office said. But Mulligan said in a statement that he wanted to “state unequivocally that he selected the best qualified person for the position.’’

McSweeney testified that the rejection was a significant blow to her self-esteem. She became depressed and experienced headaches, stomach pains, insomnia, and hives.

MCAD awarded her $206,527.36 in damages.

Joan Kenney, a spokeswoman for the state court system, said the Trial Court of Massachusetts is pursuing an appeal.

The case hinged in great measure on defining the nature of the job.

Mulligan said he felt that the operations and maintenance supervisor needed a technical background - perhaps a license as an electrician or a plumber or a degree in engineering.

McSweeney had spent more than a dozen years working as a facilities manager for courthouses and came with excellent recommendations. But because she only had a bachelor’s degree in English, the judge contended, she was not qualified for the post.

But Kaplan said that explanation was undermined by Mulligan’s hiring of a man to be operations supervisor at a Worcester courthouse - a facility three times bigger than the Plymouth courthouse - who had no technical qualifications. That hiring happened just a few months before McSweeney was denied a comparable position.

The description of the Plymouth job posted by the Trial Court said the employee “oversees the supervision of a large, multi-trades workforce engaged in activities associated with the operations and maintenance of court facilities.’’

Gregory Howard, attorney for McSweeney, said the position’s description proved the job did not require technical know-how. “The job is an administrative job, so you bring in the plumber when you need a plumber,’’ said Howard. “You don’t have to be able to go down and solder a fitting to get it done.’’

Ellen Zucker, a lawyer specializing in workplace discrimination cases who was not involved in the case, said the civil rights agency’s decision shed light on the subtle way discrimination plays out in the workplace. “It really beckons to all employers that when you’re making a hiring decision, you have to essentially work hard to check your bias at the door,’’ Zucker said.

Martine Powers can be reached at mpowers@globe.com.