06-4996 | Omnilex

Gesamter Gesetzestext

06-4996-cv
Ricci v. DeStefano

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2007

(Argued: December 10, 2007
Decided: June 9, 2008
Order issued: June 12, 2008)

Docket No. 06-4996-cv

-X

FRANK RICCI, MICHAEL BLATCHLEY, GREG
BOIVIN, GARY CARBONE, MICHAEL
CHRISTOFORO, RYAN DIVITO, STEVEN
DURAND, WILLIAM GAMBARDELLA, BRIAN
JOOSS, JAMES KOTTAGE, MATTHEW
MARCARELLI, THOMAS J. MICHAELS, SEAN
PATTON, CHRISTOPHER PARKER, EDWARD
RIORDAN, KEVIN ROXBEE, TIMOTHY SCANLON,
BENJAMIN VARGAS, JOHN VENDETTO AND MARK
VENDETTO,

# Plaintiffs-Appellants,

\- v. -

JOHN DESTEFANO, KAREN DUBOIS-WALTON,
THOMAS UDE JR., TINA BURGETT, BOISE
KIMBER, MALCOM WEBER, ZELMA TIRADO AND
CITY OF NEW HAVEN,

Defendants-Appellees

-X

FOR PLAINTIFFS-APPELLANTS: KAREN LEE TORRE, New Haven, CT
FOR DEFENDANTS-APPELLEES :
RICHARD A. ROBERTS (Nicole C.

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Chomiak, Stacey L. Pitcher, and
Todd J. Richardson, on the
brief), Cheshire, CT

## ORDER

After disposition of this appeal by summary order dated
February 15, 2008, an active judge of the Court requested a
poll on whether to rehear the case in banc. A poll on
whether to rehear the case in banc was conducted among the
active judges of the Court. After the poll was concluded,
on June 9, 2008, the original three-judge panel withdrew the
summary order and filed a per curiam opinion; no subsequent
in banc poll has been requested. Because a majority of the
court's active judges voted to deny rehearing in banc,
rehearing in banc is hereby DENIED.

Judges Calabresi, Straub, Pooler, Sack, Sotomayor,
Katzmann, and B.D. Parker concur in the denial of rehearing
in banc. Chief Judge Jacobs and Judges Cabranes, Raggi,
Wesley, Hall and Livingston dissent from the denial of
rehearing in banc.

With this order, Judge Katzmann is filing a
concurring opinion, in which Judges Pooler, Sack, Sotomayor
and B.D. Parker joins; Judge B.D. Parker is filing a
concurring opinion, in which Judges Calabresi, Pooler, Sack

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and Sotomayor join; and Judge Cabranes is filing a

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dissenting opinion, in which Chief Judge Jacobs and Judges
Raggi, Wesley, Hall and Judge Livingston join.

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Other opinions may be filed with respect to this case,
concurring or dissenting in the denial of in banc review.

KATZMANN, Circuit Judge, with whom Judge POOLER, Judge SACK, Judge SOTOMAYOR, and
Judge B.D. PARKER join, concurring in the denial of rehearing en banc:

I concur in the denial of rehearing en banc, consistent with our Circuit's longstanding
tradition of general deference to panel adjudication - a tradition which holds whether or not the
judges of the Court agree with the panel's disposition of the matter before it. Throughout our
history, we have proceeded to a full hearing en banc only in rare and exceptional circumstances.
See Wilfred Feinberg, Unique Customs and Practices of The Second Circuit, 14 Hofstra L. Rev.
297, 311-12 (1986). The Supreme Court now has before it a petition for certiorari in this case,
which I recognize presents difficult issues. As the Supreme Court decides whether to grant
certiorari, it has for its review the district court's opinion, the panel's per curiam opinion, and
opinions concurring with and dissenting from the decision denying rehearing en banc. The issues
are therefore sharply defined for the Supreme Court's consideration of whether to grant
certiorari.

BARRINGTON D. PARKER, Circuit Judge, with whom Judge CALABRESI, Judge POOLER, Judge
SACK, and Judge SOTOMAYOR join, concurring in the denial of rehearing en banc:

At the heart of the dissent from the denial of rehearing en banc is the assertion that there
was no Supreme Court or circuit law to guide this district court, or future district courts faced
with similar claims. I disagree. The district court correctly observed that this case was unusual.
Nonetheless, the district court also recognized that there was controlling authority in our
decisions-among them, Hayden v. County of Nassau, 180 F.3d 42 (2d Cir. 1999) and Bushey v.
N.Y. State Civil Serv. Comm'n, 733 F.2d 220 (2d Cir. 1984), cert. denied, 469 U.S. 1117 (1985).
These cases clearly establish for the circuit that a public employer, faced with a prima facie case
of disparate-impact liability under Title VII, does not violate Title VII or the Equal Protection
Clause by taking facially neutral, albeit race-conscious, actions to avoid such liability.

Insofar as the dissent suggests that the plaintiffs produced evidence of a racial
classification or the imposition of a quota, I think it entirely mistaken. Although the City acted
out of a concern that certifying the exam results would have an adverse impact on minority
candidates-and although, as the panel noted in its decision, the result was understandably
frustrating for applicants who passed the test-the City's response, to decline to certify any of the
exams, was facially race-neutral. The City did not classify or confer any actual benefit on
applicants on the basis of race. The dissent's citations to Adarand Constructors, Inc. v. Pena,
515 U.S. 200 (1995), and City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989), are

therefore inapposite.1 See Hayden, 180 F.3d at 49 (distinguishing those cases as "concerned with
select affirmative action tools, such as quota systems, set-aside programs, and differential scoring
cutoffs, which utilize express racial classifications and which prevent non-minorities from
competing for specific slots or contracts.").

Because there was no racial classification, the plaintiffs bore the burden of persuasion on
the issue of discriminatory purpose. Jana-Rock Constr., Inc. v. N.Y. State Dep't of Econ. Dev.,
438 F.3d 195, 204 (2d Cir. 2006). Here, however, there was no evidence of a discriminatory
purpose; according to the record evidence, the City was motivated by a desire to comply with,
and avoid liability under, Title VII and its implementing regulations. See Bushey, 733 F.2d at
226 ("It is settled that voluntary compliance is a preferred means of achieving Title VII's goal of
eliminating employment discrimination." (internal quotation marks and alteration omitted)); see
also Hayden, 180 F.3d at 51 ("A desire to reduce the adverse impact on [minority]
applicants .. . is not analogous to an intent to discriminate against non-minority candidates.").

I think the dissent also quite unfairly caricatures the district court's evaluation of the
plaintiffs' Title VII claim: "Under the District Court's rationale, it appears that any race-based
employment decision undertaken to avoid a threatened or perceived Title VII lawsuit is itself

1 It may be worth noting that the Croson Court based its decision partly on the fact that
"[t]here [was] nothing approaching a prima facie case of a constitutional or statutory violation by
anyone in the Richmond construction industry." Croson, 488 U.S. at 500. Here, by contrast, the
City was faced with a prima facie case of a violation of Title VII. See Gulino v. N.Y. State Educ.
Dep't, 460 F.3d 361, 382 (2d Cir. 2006) (defining prima facie case of disparate-impact liability
under Title VII); Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 160 (2d Cir. 2001)
(same); see also 42 U.S.C. § 2000e-2(k) (codifying the disparate-impact theory of liability and
legislatively overruling Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 659 (1989)).

immune from scrutiny under Title VII." This is simply not the case. Prior to reaching its
conclusion, the district court assessed whether the examination results demonstrated a
statistically disproportionate adverse racial impact under the EEOC Guidelines and whether the
City had presented evidence to support its belief that less discriminatory alternatives to this
particular test existed. This analysis shows that, contrary to the dissent's suggestion, the district
court did not rubber stamp the City's proffered non-discriminatory reason for not certifying the
exam results.

Moreover, I hardly think that in order to decline to certify the exam results, the City was
required to prove, through a validation study or some other means, that its own tests were not
"job related for the position in question and consistent with business necessity," 42 U.S.C.
§ 2000e-2(k)(1)(A)(i) (defining affirmative defense to prima facie case of disparate impact
violation). In fact, our case law explicitly rejects that proposition. See Bushey, 733 F.2d at 226
(disagreeing with the assertion that "before adopting remedial measures" the employer must
"prove that [the] prima face case [of a disparate-impact Title VII violation] was not rebuttable
through job-related explanations").

I also disagree with the dissent's view that en banc review is warranted because the
district court analyzed the plaintiff's claims using the McDonnell Douglas pretext test rather than
the Price Waterhouse mixed-motive test. See Price Waterhouse v. Hopkins, 490 U.S. 228
(1989); McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). As the dissent is well aware,
the plaintiffs did not argue the mixed-motive theory; a non-party raised it in an amicus brief.
"Although an amicus brief can be helpful in elaborating issues properly presented by the parties,

it is normally not a method for injecting new issues into an appeal, at least in cases where the
parties are competently represented by counsel." Universal City Studios, Inc. v. Corley, 273 F.3d
429, 445 (2d Cir. 2001); see also Bano v. Union Carbide Corp., 273 F.3d 120, 127 n.5 (2d Cir.
2001) (same).

Finally, the dissent suggests that the panel's per curiam opinion inappropriately adopted
the reasoning set forth in the district court's opinion, one that the panel recognized was
"thorough, thoughtful, and well-reasoned." The adherence of a Court of Appeals to the decision
and reasoning of a district court is anything but novel. In fact, the practice pre-dates the formal
establishment of this Court in 1891 by at least fifty years. United States v. Libellants &
Claimants of the Schooner Amistad, 40 U.S. 518, 590 (1841) ("The Circuit Court, by a mere pro
forma decree, affirmed the decree of the [Connecticut] District Court .... And from that decree
the present appeal has been brought to this Court."). This Court has followed this practice on
numerous occasions in appeals covering myriad issues. See, e.g., In re Bankers Trust Co., 450
F.3d 121, 123 (2d Cir. 2006) (per curiam); Murphy ex rel. Estate of Payne v. United States, 427
F.3d 158, 159 (2d Cir. 2005) (per curiam); In re Red Dot Scenic, Inc., 351 F.3d 57, 58 (2d Cir.
2003) (per curiam); United States v. Gluzman, 154 F.3d 49, 50 (2d Cir. 1998); Trans World
Airlines, Inc. v. Sinicropi, 84 F.3d 116, 116 (2d Cir.) (per curiam), cert. denied, 519 U.S. 949
(1996).

The plaintiffs were entitled to a careful and thoughtful review of their claims. The panel
decided that the district court had given them just that, and thus adopted the district court's
reasoning in its per curiam opinion. Nothing more is required.

JOSÉ A. CABRANES, Circuit Judge, with whom Chief Judge JACOBS, Judge RAGGI, Judge WESLEY, Judge
HALL, and Judge LIVINGSTON join, dissenting:

This appeal raises important questions of first impression in our Circuit-and indeed, in the
nation-regarding the application of the Fourteenth Amendment's Equal Protection Clause and Title
VII's prohibition on discriminatory employment practices. At its core, this case presents a straight-
forward question: May a municipal employer disregard the results of a qualifying examination, which
was carefully constructed to ensure race-neutrality, on the ground that the results of that examination
yielded too many qualified applicants of one race and not enough of another? In a path-breaking
opinion, which is nevertheless unpublished, the District Court answered this question in the
affirmative, dismissing the case on summary judgment. A panel of this Court affirmed in a summary
order containing a single substantive paragraph. Ricci v. DeStefano, No. 06-4996-cv (2d Cir. Feb. 15,
2008).1 Three days prior to the filing of this opinion, the panel withdrew its summary order and filed a
per curiam opinion adopting in toto the reasoning of the District Court, thereby making the District
Court's opinion the law of the Circuit. See Ricci v. DeStefano, _ F.3d _ (2d Cir. 2008).

The use of per curiam opinions of this sort, adopting in full the reasoning of a district court
without further elaboration, is normally reserved for cases that present straight-forward questions that
do not require explanation or elaboration by the Court of Appeals. The questions raised in this appeal
cannot be classified as such, as they are indisputably complex and far from well-settled. These
questions include: Does the Equal Protection Clause prohibit a municipal employer from discarding
examination results on the ground that "too many" applicants of one race received high scores and in
the hope that a future test would yield more high-scoring applicants of other races? Does such a

' Reproduced as Appendix A.

practice constitute an unconstitutional racial quota or set-aside? Should the burden-shifting framework
applicable to claims of pretextual discrimination ever apply to a claim of explicit race-based
discrimination in violation of Title VII? If a municipal employer claims that a race-based action was
undertaken in order to comply with Title VII, what showing must the employer make to substantiate
that claim? Presented with an opportunity to address en banc questions of such "exceptional
importance," Fed. R. App. P. 35(a)(2), a majority of this Court voted to avoid doing so.

I respectfully dissent from that decision, without expressing a view on the merits of the
questions presented by this appeal, in the hope that the Supreme Court will resolve the issues of great
significance raised by this case.

## BACKGROUND

In late 2003, 118 applicants took a written and oral examination administered by the New
Haven Fire Department ("NHFD") for promotion to the ranks of Captain and Lieutenant. Forty-one
applicants took the Captain examination, of whom twenty-five were white, eight black, and eight
Hispanic. Based on the examination results and New Haven's protocol for civil service promotions, it
appeared, at the time that the tests were scored, that "no blacks and at most two Hispanics would be
eligible for promotion" to Captain. Ricci v. DeStefano, No. 04cv1109, at 3 (D. Conn. Sept. 28, 2006).2
With respect to the Lieutenant examination, the racial composition of the seventy-seven applicants was
as follows: forty-three whites, nineteen blacks, and fifteen Hispanics. The examination results indicated
that no blacks or Hispanics would be promoted to the rank of Lieutenant. Between January and March
2004, the New Haven Civil Service Board ("CSB") held hearings to determine whether to certify the
examination results and confer promotions according to those results. Despite the substantial efforts
undertaken by the examination designer to ensure that it would be race-neutral, the City of New Haven

2 Reproduced as Appendix B.

(the "City") frankly stated its fear that, if the results were certified, it would face an employment
discrimination lawsuit from non-white applicants who were not promoted. The CSB did not certify the
examination results, and no promotions were made.

Eighteen candidates-seventeen whites and one Hispanic-brought an action in the U.S.
District Court for the District of Connecticut. They alleged in their complaint that the City and several
municipal officials-acting in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et
seq., the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, and other
provisions of federal and state law-disregarded the results of two promotional examinations that
produced "too many" eligible white candidates and "too few" eligible non-white candidates. On cross-
motions for summary judgment, the District Court (Janet Bond Arterton, Judge) granted defendants'
motion for summary judgment, denied plaintiffs' motion, and directed the Clerk of Court to close the
case.

In a forty-eight page opinion, the District Court observed that (1) "[p]laintiffs' evidence-and
defendants' own arguments-show that the City's reasons for advocating non-certification [of the
examination results] were related to the racial distribution of the results" and (2) "[a] jury could infer
that the defendants were motivated by a concern that too many whites and not enough minorities
would be promoted were the [eligibility] lists to be certified." Ricci, No. 04cv1109, at 20-21. The
District Court recognized the exceptional circumstances presented by the case, noting that it "presents
the opposite scenario of the usual challenge to an employment or promotional examination, as
plaintiffs attack not the use of allegedly racially discriminatory exam results, but defendants' reason for
their refusal to use the results." Id. at 22. Applying the burden-shifting framework set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the District Court held that "[d]efendants'
motivation to avoid making promotions based on a test with a racially disparate impact, even in a

political context, does not, as a matter of law, constitute discriminatory intent, and therefore such
evidence is insufficient for plaintiffs to prevail on their Title VII claim." Ricci, No. 04cv1109, at 39-40
(footnote omitted).

The District Court further concluded that defendants had not violated plaintiffs' rights under
the Equal Protection Clause by, as plaintiffs alleged, "employing a race-based classification system for
promotion or, alternatively, by applying facially neutral promotion criteria in a racially discriminatory
manner." Id. at 40, 44. Although it is not disputed that the decision to discard the examination results
was based on racial considerations, the District Court determined as a matter of law that no racial
discrimination had occurred "because [all of] the test results were discarded and nobody was
promoted," id. at 42, and because "[n]othing in the record in this case suggests that the City defendants
or CSB acted 'because of discriminatory animus toward plaintiffs or other non-minority applicants for
promotion," id. at 43. The District Court also rejected plaintiffs' civil rights conspiracy and First
Amendment claims and declined supplemental jurisdiction over a state law tort claim.

On appeal, the parties submitted briefs of eighty-six pages each and a six-volume joint appendix
of over 1,800 pages; plaintiffs' reply brief was thirty-two pages long. Two amici briefs were filed and
oral argument, on December 10, 2007, lasted over an hour (an unusually long argument in the practice
of our Circuit). More than two months after oral argument, on February 15, 2008, the panel affirmed
the District Court's ruling in a summary order containing a single substantive paragraph. The operative
portion of the summary order read as follows:

We affirm, substantially for the reasons stated in the thorough, thoughtful, and well-reasoned
opinion of the court below. In this case, the Civil Service Board found itself in the unfortunate
position of having no good alternatives. We are not unsympathetic to the plaintiffs' expression
of frustration. Mr. Ricci, for example, who is dyslexic, made intensive efforts that appear to
have resulted in his scoring highly on one of the exams, only to have it invalidated. But it
simply does not follow that he has a viable Title VII claim. To the contrary, because the Board,
in refusing to validate the exams, was simply trying to fulfill its obligations under Title VII

when confronted with test results that had a disproportionate racial impact, its actions were
protected.

The judgment of the district court is AFFIRMED.

See App. A. Four months later, and three days prior to the publication of this opinion, the panel
withdrew its summary order and published a per curiam opinion that contained the same operative text
as the summary order, with the addition of a citation to the District Court's opinion in the Westlaw and
LexisNexis databases. This per curiam opinion adopted in toto the reasoning of the District Court,
without further elaboration or substantive comment, and thereby converted a lengthy, unpublished
district court opinion, grappling with significant constitutional and statutory claims of first impression,
into the law of this Circuit. It did so, moreover, in an opinion that lacks a clear statement of either the
claims raised by the plaintiffs or the issues on appeal. Indeed, the opinion contains no reference
whatsoever to the constitutional claims at the core of this case, and a casual reader of the opinion could
be excused for wondering whether a learning disability played at least as much a role in this case as the
alleged racial discrimination. This perfunctory disposition rests uneasily with the weighty issues
presented by this appeal.3

Prior to the entry of the per curiam opinion and in light of the "question[s] of exceptional
importance," Fed. R. App. P. 35(a)(2), raised in this appeal, the Court considered a motion for en banc
review. A majority of this Court declined to take up the appeal.

## DISCUSSION

3 Judge Parker's observation that "[t]he adherence of a Court of Appeals to the decision and reasoning of a
district court is anything but novel" cannot be gainsaid. In appropriate cases, such a disposition is entirely
unobjectionable. Where significant questions of unsettled law are raised on appeal, however, a failure to address those
questions-or even recognize their existence-should not be the approved modus operandi of the U.S. Court of
Appeals.

The core issue presented by this case-the scope of a municipal employer's authority to
disregard examination results based solely on the race of the successful applicants-is not addressed by
any precedent of the Supreme Court or our Circuit. Plaintiffs alleged that the City's actions violated,
inter alia, their rights under the Equal Protection Clause and Title VII. The District Court disagreed,
but did so without the benefit of pertinent guidance from a higher court. The questions raised by the
instant appeal clearly merit further review.4

### A. The Equal Protection Clause

Plaintiffs claim that the City's decision to discard the examination results was race-based
discrimination in violation of the Equal Protection Clause because it was undertaken solely to reduce
the number of high-scoring white applicants and increase the number of eligible non-white candidates.
Defendants contend that their decision, though race-based, was necessary because compliance with
federal anti-discrimination laws required them to reduce the number of eligible white candidates. See
Ricci, No. 04cv1109, at 20-21; Appellee Br. at 15-20, 30-31. The Supreme Court has addressed a
government entity's claim that race-based decisions were necessary to redress a racial imbalance in the
closely analogous context of government contracts. In City of Richmond v. J. A. Croson Co., the Supreme
Court held that: "[w]hile there is no doubt that the sorry history of both private and public
discrimination in this country has contributed to a lack of opportunities for black entrepreneurs, this
observation, standing alone, cannot justify a rigid racial quota in the awarding of public contracts .... "
488 U.S. 469, 499 (1989). The Court further observed that:

[W]hen a legislative body chooses to employ a suspect classification, it cannot rest upon a
generalized assertion as to the classification's relevance to its goals. A governmental actor
cannot render race a legitimate proxy for a particular condition merely by declaring that the
condition exists. The history of racial classifications in this country suggests that blind judicial

4 Indeed, in his opinion concurring in the denial of en banc review, Judge Katzmann recognizes as much,
observing that this appeal "presents difficult issues."

deference to legislative or executive pronouncements of necessity has no place in equal
protection analysis.

Id. at 500-01 (internal citations omitted). More recently, the Supreme Court has identified "three
general propositions with respect to governmental racial classifications." Adarand Constructors, Inc. v.
Pena, 515 U.S. 200, 223 (1995). They are:

First, skepticism: Any preference based on racial or ethnic criteria must necessarily receive a
most searching examination. Second, consistency: The standard of review under the Equal
Protection Clause is not dependent on the race of those burdened or benefited by a particular
classification, i.e., all racial classifications reviewable under the Equal Protection Clause must be
strictly scrutinized. And third, congruence: Equal protection analysis in the Fifth Amendment
area is the same as that under the Fourteenth Amendment. Taken together, these three
propositions lead to the conclusion that any person, of whatever race, has the right to demand that any
governmental actor subject to the Constitution justify any racial classification subjecting that person to unequal
treatment under the strictest judicial scrutiny.

Id. at 223-24 (quotation marks, internal citations, and brackets omitted) (emphasis added).

Whether the District Court's judgment comports with these propositions is a question of
immense importance that is not addressed in the panel's per curiam opinion. The District Court's ruling
rested in part on the premise that "where a test is administered and scored in the same manner for all
applicants, plaintiffs cannot make out a claim that the exam was a facially neutral test used in a
discriminatory manner." Ricci, No. 04cv1109, at 42. Neutral administration and scoring-even against
the backdrop of race-conscious design of an employment examination, see Hayden v. County of Nassau, 180
F.3d 42, 50 (2d Cir. 1999)-is one thing. But neutral administration and scoring that is followed by
race-based treatment of examination results is surely something else entirely. Where, as here,
examination results are disregarded on the ground that too many candidates of one race qualified for
promotion on the basis of those results, the fact of neutral administration and scoring may not
necessarily immunize defendants from the claims of civil rights violations brought by plaintiffs. If it
did, municipal employers could reject the results of an employment examination whenever those results

failed to yield a desired racial outcome-i.e., failed to satisfy a racial quota. Croson and Adarand establish
that racial quotas are impermissible under the Constitution absent specific findings of past
discrimination that are not in the record here. Whether Croson and Adarand preclude the actions
challenged in this case, or whether Hayden can fairly be read to compel judgment in defendants' favor
as a matter of law, are questions that admit no easy answer. As such, they require the careful analysis of
a full opinion of an appellate court, not abbreviated disposition.

The District Court held that the test was administered in the same manner for all applicants
because the City discarded the scores of all exam-takers. Insofar as the decision to not certify the
results was based on the race of the high-scoring applicants, however, it is arguable that the deck was
stacked against applicants of that race: If too many white applicants obtained high scores, the City
stood ready to nullify the results in the hope that non-white applicants would score relatively higher on
a subsequent examination.5 Whether such action amounts to an impermissible racial quota was not
addressed in the District Court's opinion or in the decisions issued by the panel, which do not even
note that this action arises under the Equal Protection Clause of the Fourteenth Amendment. See App.
A (summary order of Feb. 15, 2008); per curiam opinion filed on June 9, 2008.

The District Court also held as a matter of law that none of the City's reasons for disregarding
the examination results amounted to intentional discrimination because the City had

acted based on the following concerns: that the test had a statistically adverse impact on
African-American and Hispanic examinees; that promoting off of this list would undermine
their goal of diversity in the Fire Department and would fail to develop managerial role models
for aspiring firefighters; that it would subject the City to public criticism; and that it would likely
subject the City to Title VII lawsuits from minority applicants that, for political reasons, the City did not
want to defend.

5 In his opinion concurring in the denial of en banc review, Judge Parker concludes that the City "did not . . .
confer any actual benefit on applicants on the basis of race." It is, at the very least, an open question whether discarding
examination results on the basis of race so that members of certain races could have a "second chance" to compete
constitutes the conferral or denial of a benefit on the basis of race.

Ricci, No. 04cv1109, at 43 (emphasis added). Leaving aside the propriety of the District Court's
evaluation, on summary judgment, of the City's motives-a quintessential question of fact, see, e.g., Hunt
v. Cromartie, 526 U.S. 541, 552-53 (1999)-it is at least arguable that the District Court failed to subject
the City's justifications to the "most searching examination" prescribed by the Adarand Court. See 515
U.S. at 223. The record suggests that the District Court took the City's justifications at face value, as it
appears Judge Parker has done in his opinion concurring in the denial of en banc review. An appellate
court ought to consider whether this level of scrutiny is consistent with Justice O'Connor's
observation, in Croson, that "[a]bsent searching judicial inquiry into the justification for such race-based
measures, there is simply no way of determining what classifications are 'benign' or 'remedial' and what
classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics."
488 U.S. at 493 (plurality opinion). Justice O'Connor's cautionary note on "racial politics" is
particularly relevant in light of the District Court's observation that fear of "public criticism" and other
"political reasons" factored into the City's decision. Whether the District Court subjected the City's
claims to sufficient scrutiny-and whether the City's claims could have withstood such scrutiny-are
vital "question[s] of exceptional importance," Fed. R. App. P. 35(a)(2), that warrant further review,
both for the proper resolution of this case and for the guidance of other courts and municipalities in
future cases.

### B. Title VII

Plaintiffs urge that the City's race-based action also violated Title VII's prohibition of
employment discrimination. See 42 U.S.C. § 2000e-2. The District Court dismissed plaintiffs' Title VII
claim by applying the three-step burden-shifting framework for adjudicating claims of pretextual
discrimination established by McDonnell Douglas. The dismissal of the Title VII claim on this basis raises
two significant questions: (1) whether the McDonnell Douglas test for pretextual discrimination should be

applied to claims of discrimination that is overt, and (2) whether a race-based decision allegedly made to
avoid perceived liability for racial discrimination is exempt from scrutiny under Title VII and, if not,
what quantum of proof is required to substantiate such a defense.

Courts generally apply McDonnell Douglas in cases where plaintiffs "present[] no direct evidence
of discriminatory treatment." Woodman v. WWOR-TV, Inc., 411 F.3d 69, 76 (2d Cir. 2005); see also
Graves v. Finch Pruyn & Co. Inc, 457 F.3d 181, 187 (2d Cir. 2006). "If a plaintiff can convince the trier of
fact that an impermissible criterion in fact entered into the employment decision, [however,] a
somewhat different analysis takes place." Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1181 (2d Cir.
1992). In that kind of "mixed-motive" case, the burden-shifting analysis set forth in Price Waterhouse v.
Hopkins, 490 U.S. 228 (1989), governs the claim. Under this framework,

the plaintiff . . . must focus his proof directly at the question of discrimination and prove that
an illegitimate factor had a motivating or substantial role in the employment decision. If the
plaintiff convinces the factfinder that the illegitimate factor played such a role, the employee
has proved that the decision was made at least in part because of the illegitimate factor. At this
point the employee is entitled to succeed subject only to the employer's opportunity to prove
its affirmative defense; that is, that it would have reached the same decision as to the
employee's employment even in the absence of the impermissible factor.

Tyler, 958 F.2d at 1181 (internal citations, quotation marks, and brackets omitted); see also Sista v. CDC
Ixis N. Am., Inc., 445 F.3d 161, 173-74 (2d Cir. 2006); Raskin v. Wyatt Co., 125 F.3d 55, 60-61 (2d Cir.
1997) ("Evidence potentially warranting a Price Waterhouse burden shift includes, inter alia, policy
documents and evidence of statements or actions by decisionmakers that may be viewed as directly
reflecting the alleged discriminatory attitude." (internal quotation marks omitted).

The Ricci plaintiffs offered evidence that an impermissible factor-their race-motivated
defendants to discard the results of the employment examination. As the District Court itself candidly
observed: "[p]laintiffs' evidence-and defendants' own arguments-show that the City's reasons for
advocating non-certification [of the examination results] were related to the racial distribution of the

results" and "[a] jury could infer that the defendants were motivated by a concern that too many whites
and not enough minorities would be promoted were the [eligibility] lists to be certified." Ricci, No.
04cv1109, at 20-21. The District Court's application of the McDonnell Douglas test for pretextual
discrimination, its conclusion that plaintiffs cannot pass that test as a matter of law, and its failure to
consider the possibility that defendants themselves might bear a burden of proof under the analysis set
forth in Price Waterhouse, all raise serious concerns left unaddressed by the panel in its per curiam opinion
and by the full Court, which declined en banc review of the appeal.

Assuming arguendo that a claim of overt racial discrimination is ever appropriately evaluated
under the McDonnell Douglas framework for pretextual discrimination, the application of that framework
to this case required a "reversal" of the usual roles assigned to plaintiffs and defendants in such cases.
As the District Court observed:

[T]his case presents the opposite scenario of the usual challenge to an employment or
promotional examination .... Ordinarily, as contemplated by the statute, the "complaining
party" bears the burden of proving a disparate impact, and the "respondent" bears the burden
of "demonstrat[ing] that the challenged practice is job related for the position in question and
consistent with business necessity," or, alternatively, the "complaining party" may prevail by
showing that an alternative employment practice with less disparate impact existed and that the
respondent failed to utilize it. Here, the roles of the parties are in essence reversed, with the
defendants, normally reflecting a "respondent" role in the Title VII disparate impact analysis,
contending that use of the promotional exams, if they had been certified, would have had an
adverse impact, and the plaintiffs, normally the "complaining party," arguing that the test
results were sufficiently job-related to be defensible under the law.

Ricci, No. 04cv1109, at 22 (alteration in original) (internal citations omitted). Unlike the Court of
Appeals, the District Court answered the exceptional, and difficult, questions presented, concluding
that the City's expressed desire to comply with "the letter and the spirit of Title VII," id. at 22,
constituted a non-pretextual reason for its action, id. at 39-40, and therefore no employment
discrimination occurred. Under the District Court's rationale, it appears that any race-based
employment decision undertaken to avoid a threatened or perceived Title VII lawsuit is immune from

scrutiny under Title VII.6 This appears to be so, moreover, regardless of whether the employer has
made any efforts to verify that a valid basis exists for the putative Title VII suit. Applying this
rationale, the District Court concluded that the City, which had not conducted any study to determine
whether latent racial bias had tainted the results of the promotion examination, could discard the
results of the examination, id. at 25-26, in the hope that a future test would yield a preferable racial
distribution, id. at 36. Regardless of how one may decide the matter, there can be little doubt that a
decision of this Court thus sanctioning race-based employment decisions in the name of compliance
with Title VII raises novel questions that are indisputably of "exceptional importance."

## CONCLUSION

It is arguable that when an appeal raising novel questions of constitutional and statutory law is
resolved by an opinion that tersely adopts the reasoning of a lower court-and does so without further
legal analysis or even a full statement of the questions raised on appeal-those questions are insulated
from further judicial review. It is arguable also that the decision of this Court to deny en banc review of
this appeal supports that view. What is not arguable, however, is the fact that this Court has failed to
grapple with the questions of exceptional importance raised in this appeal. If the Ricci plaintiffs are to
obtain such an opinion from a reviewing court, they must now look to the Supreme Court. Their
claims are worthy of that review.

6 Despite Judge Parker's assertion to the contrary, I do not charge the District Court with applying a "rubber
stamp" to the City's race-based decisions. I simply question whether the Court of Appeals has set forth a standard for
determining when such action is acceptable and when it violates the constitutional and statutory rights of citizens. If any
fault is to be levied in this regard, it falls on our Court for failing to provide guidance, and not on the District Court
which endeavored to confront this question of exceptional importance.

Appendix A

# UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

## SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION
TO SUMMARY ORDERS FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY THIS COURT'S LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE
PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A LITIGANT CITES A
SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED
BY THE NOTATION: "(SUMMARY ORDER)." A PARTY CITING A SUMMARY ORDER
MUST SERVE A COPY OF THAT SUMMARY ORDER TOGETHER WITH THE PAPER IN
WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED BY
COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC
DATABASE WHICH IS PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS
THE DATABASE AVAILABLE AT HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS
SERVED BY REASON OF THE AVAILABILITY OF THE ORDER ON SUCH A DATABASE,
THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE DOCKET
NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.

At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 15th day of February, two thousand and eight.

Present:
ROSEMARY S. POOLER,
ROBERT D. SACK,
SONIA SOTOMAYOR,
Circuit Judges,

FRANK RICCI, MICHAEL BLATCHLEY, GREG BOIVIN, GARY CARBONE, MICHAEL
CHRISTOFORO, RYAN DIVITO, STEVEN DURAND, WILLIAM GAMBARDELLA,
BRIAN JOOSS, JAMES KOTTAGE, MATTHEW MARCARELLI, THOMAS J. MICHAELS,
SEAN PATTON, CHRISTOPHER PARKER, EDWARD RIORDAN, KEVIN ROXBEE,
TIMOTHY SCANLON, BENJAMIN VARGAS, JOHN VENDETTO AND MARK
VENDETTO,

Plaintiffs-Appellants,

(06-4996-cv)

JOHN DESTEFANO, KAREN DUBOIS-WALTON, THOMAS UDE JR., TINA BURGETT,
BOISE KIMBER, MALCOM WEBER, ZELMA TIRADO AND CITY OF NEW HAVEN,

Defendants-Appellees.

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Appearing for Plaintiffs-Appellants:

Appearing for Defendants-Appellants:

Richard A. Roberts (Nicole C. Chomiak,
Stacey L. Pitcher, and Todd J. Richardson
on the brief), Cheshire, CT.

UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.

Plaintiffs appeal from a judgment of the United States District Court for the District of
Connecticut (Arterton, J.) granting the defendants' motion for summary judgment on all counts.

The judgment of the district court is AFFIRMED.

FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk

By:

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Appendix B

# UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

FRANK RICCI, et al.,

Plaintiffs,

Civil No. 3:04cv1109 (JBA)

JOHN DESTEFANO, et al.,

Defendants.

# RULING ON CROSS-MOTIONS FOR SUMMARY JUDGMENT [DOCS. ## 52, 601

In March 2004 the New Haven Civil Service Board ("CSB")
refused to certify the results of two promotional exams for the
positions of Lieutenant and Captain in the New Haven Fire
Department. This lawsuit arises from the circumstances leading
to that decision and its consequences.

Plaintiffs are seventeen white candidates and one Hispanic
candidate who took the promotional exams, on which they fared
very well, but received no promotion because without the CSB's
certification of the test results, the promotional process could
not proceed. Defendants are the City of New Haven, Mayor John
DeStefano, Chief Administrative Officer Karen Dubois-Walton,
Corporation Counsel Thomas Ude, Director of Personnel Tina
Burgett, and the two members of the CSB, Malcolm Weber and Zelma
Tirado, who voted against certification. Plaintiffs assert that
defendants' actions in voting or arguing against certification of
the examination results violated their rights under Title VII of

the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the
Equal Protection Clause, the First Amendment, and 42 U.S.c. §
1985; plaintiffs also allege a common law claim of intentional
infliction of emotional distress. The parties have cross-moved
for summary judgment on the Title VII and Equal Protection
claims, and defendants additionally move for summary judgment on
plaintiffs' other claims.

For the reasons that follow, defendants' motion for summary
judgment [Doc. # 52] will be granted as to plaintiffs' federal
claims; plaintiffs' cross-motion for summary judgment [Doc. # 60]
will be denied; and the Court will decline jurisdiction over
plaintiffs' state law claim. 1

## I. Factual Background

While the parties strenuously dispute the relevance and
legal import of, and inferences to be drawn from, many aspects of
this case, the underlying facts are largely undisputed. In
November and December 2003, the New Haven Fire Department
administered written and oral examinations for promotion to
Lieutenant and Captain. The City's Department of Human Resources
issued a Request for Proposal for these examinations, as a result
of which I/O Solutions ("IOS"), a seven-year-old Illinois company
that specializes in entry-level and promotional examinations for

1Defendants also moved to strike portions of plaintiffs'
Local Rule 56 (a) 2 Statement, which motion was denied. See Ruling
Denying Motion to Strike [Doc. # 130].

public safety (police and fire) departments, designed the
examinations. Pl. Ex. IV(C) at 8. Under the contract between
the City and the New Haven firefighters' union, the written exam
result counted for 60% of an applicant's score and the oral exam
for 40%. Those with a total score above 70% on the exam would
pass.

Forty-one applicants took the Captain exam, of whom 25 were
white, 8 black, and 8 Hispanic. Twenty-two of those applicants
passed, of whom 16 were white, 3 black, and 3 Hispanic. Pl. Ex.
Vol. I, at 43. Given that there were 7 Captain vacancies in the
department when the tests were administered, and that the "Rule
of Three" in the City Charter mandates that a civil service
position be filled from among the three individuals with the
highest scores on the exam, it appeared at that time that no
blacks and at most two Hispanics would be eligible for promotion,
as the top 9 scorers included 7 whites and 2 Hispanics.2

Seventy-seven applicants took the Lieutenant exam, of whom

whom 25 were white, 6. black and 3 Hispanic. Id. There were 8
vacancies, but because all of the top 10 scorers were white, it
appeared that no blacks or Hispanics would be promoted. 3

2Hispanics ranked 7, 8 and 13; blacks ranked 16, 19 and 22.
Pl. Ex. Vol. I, at 43.

3Hispanics ranked 27, 28 and 31; blacks ranked 14, 15, 16,
20, 22, and 24. Pl. Ex. Vol. I, 43.

Certified promotional lists remain valid for two years.

The CSB held five hearings between January and March 2004 on
the issue of whether to certify the test results. The issue
appears to have been raised by New Haven's Corporation Counsel,
Thomas Ude. At the initial hearing on January 22, 2004, Mr. Ude
characterized the exam results as "a very significant disparate
impact . . . that caused us to think this was something we should
bring to you, the Civil Service Board, to evaluate and to be part
of and to ultimately make a decision about the process." Pl. Ex.
Vol. IV(A) at 32. While it is disputed whether Mr. Ude already
had made up his mind to advise the CSB against certifying the
results, his comments "emphasize[d] . . . that the case law does
not require that the City find that the test is indefensible in
order to take action that it believes is appropriate to remedy .
. . disparate impact from examination." Id. at 34-35. He
advised that "federal law does not require that you [the CSB]
make a finding that this test . . . was not job-related, which is
another way of saying it wasn't fair. A test can be job-related
and have a disparate impact on an ethnic group and still be
rejected because there are less discriminatory alternatives for
the selection process." Id. at 36.

During the hearings, the tests results were not released by
name, and therefore none of the firefighters knew where they had
placed. The only information provided to the CSB and the public,

including plaintiffs, was the scores by race and gender.
Nonetheless, several firefighters, although they did not know
where they had placed, spoke in favor of certifying the results.
Plaintiff Frank Ricci stated that the questions on the test were
drawn from "nationally recognized" books and New Haven's own
Rules and Regulations and Standard Operating Procedures. Pl. Ex.
Vol. IV(A) at 88. He stated that he "studied 8 to 13 hours a day
to prepare for this test and incurred over $1,000 in funds [sic]
to study for this test," including purchasing the books and
paying an acquaintance to read them on tape because he is
dyslexic and learns better by listening. Other firefighters, who
believed the tests were fair, also spoke in support of the
certifying the results. See, e.g., Testimony of Michael
Blatchley, id. at 75 ("[N]one of those questions were not in that
study material. Every one of those questions came from the
material.") .

During the first hearing, the CSB also took statements from
several New Haven firefighters who complained that some of the
questions were not relevant to knowledge or skills necessary for
the positions (see, e.q., Statement of James Watson, id. at 85
("I think this test was unfair. We don't use a lot of things
that were on that test" such as whether to park a firetruck
facing "uptown" or "downtown") ), or that the study materials were
difficult to obtain (see Testimony of Gary Kinney, id. at 77

("The only books that most of us had in front of us in the fire
houses were Essentials of Fire Fighting. . . . [T]hese books [on
the syllabus] were never in the fire houses.") ) .

At the second hearing on February 5, Patrick Egan, president
of the firefighters' union, urged the CSB to conduct a validation
study to determine the job-relatedness of the test, referring
generally, although not by name, to the EEOC's "Uniform
Guidelines of Employee Selection Procedures." Pl. Ex. Vol. IV (B)
at 11-12. Plaintiffs' counsel in the present case also spoke and
urged certification.

On the other side, Donald Day, a representative of the
Northeast Region of the International Association of Black
Professional Firefighters, argued against certification, stating
that previous promotional examinations in 1996 and 1999 had black
and Latino firefighters ranked sufficiently high to have a
realistic opportunity for promotion, whereas "there was something
inherently wrong with this test" because minorities did not score
as highly. Id. at 33-34. . He suggested that the CSB speak with
the director of the civil service in Bridgeport "to find out what
Bridgeport is doing different [sic] than New Haven," as they have
more diversity in their firefighter ranks. Id. at 35. In
particular, he stated that Bridgeport had "changed the relative
weights" among the portions of the exam, such that the written
test counts for 30% of the total score, the oral test for 65%,

and seniority 5%. Id. at 36-37. Ronald Mackey, the Internal
Affairs Officer for the Northeast Region of the International
Association of Black Professional Firefighters, supported Patrick
Egan's suggestion of obtaining a validation study, and also
suggested that New Haven could "adjust the test" as Bridgeport
had done, in order to "meet the criteria of having a certain
amount of minorities get elevated to the rank of Lieutenant and
Captain." Id. at 43-45.

On February 11, 2004, the CSB heard from Chad Legel, Vice
President of IOS, who was the "project manager" in charge of
developing the exams at issue. He stated that IOS had prepared
"both an entry-level exam and a physical ability test for the
firefighter position" in New Haven, but had not previously
prepared a New Haven promotional exam. Id. at 10. However, in
recent years his company had worked with similarly-sized public
safety departments with demographics similar to New Haven,
including Lansing, Michigan, Orange County, Florida, and the
North Miami Police Department, among others. Id. at 9.

Legel described the way in which the test was developed.
First, the company interviewed a random sample of current New
Haven Fire Department Lieutenants, Captains and Battalion Chiefs
to determine basic information concerning the structure of the
department, the tasks required of individuals at each rank, and
the materials the department generally utilizes for training.

Based on the interviews, IOS developed a written job analysis
questionnaire ("JAQ") that asked all incumbents in the positions
of Lieutenant and Captain "to provide information about how
important they feel a specific task, knowledge area, skill or
ability is.
Id. at 17. The JAQ asked how important each
task was to successful performance on the job and how frequently
it was necessary to perform it. Importance and frequency were
merged into a metric called "criticality or essentiality." Id.
at 19. Tasks above a certain criticality threshold were
designated for testing on the written and oral portions of the
exam. In response to the question of whether he has generally
found a difference between information tested in various
departments "based on the racial content of the city and the
force," Legel stated, "definitely no." Id. at 21. The one
difference among the New Haven firefighters of similar rank that
Legel noted was different levels of training in certain
specialized fields such as hazardous materials; such variation
"throws up a red flag" indicating that IOS should not ask "high-
level questions about hazardous materials.
Id. at 22.

Legal further stated that all the questions were firmly
rooted in the study materials on the syllabus, which was
distributed with the promotion applications. See Def. Ex. 16
("Written Examination Reference List"). Once the test was
completed, an "independent reviewer;" a Battalion Chief from the

Cobb County, Georgia, Fire Department, "reviewed the written exam
for content and fidelity to the source material." Pl. Ex. Vol.
IV(B) at 24-25. Another independent reviewer, a retired Fire
Chief from outside Connecticut, reviewed the oral exam questions.
Id. at 26. IOS refrained from utilizing reviewers from
Connecticut because the RFP had specified that examiners must
come from outside Connecticut, due to concerns that utilizing
internal personnel could potentially facilitate cheating on the
test.

Likewise, IOS selected the panelists for the oral
examination panels from departments outside Connecticut, making
an effort "to gain maximum diversity." Id. at 32. All but one
panel had one African-American, one Hispanic and one white
assessor, and a standby panel had two African-Americans and one
white. Id. The assessors were trained on how to grade the oral
exam scenarios consistently, utilizing checklists of desired
criteria. Each panelist also held at least an equal rank (if not
superior) to the position being tested, in order to be able to
identify an answer that was good but not quite the best answer
outlined in the checklist. Id. at 33-34, 37.

Legel concluded by "implor [ing] anyone that had
concerns [about disparate impact] to review the content of the
exam. In my professional opinion, it's facially neutral."
Id. at 49.

Noelia Marcano, Chief Examiner for the City of New Haven and
Secretary to the CSB, explained the process by which the RFP was
developed and IOS chosen. She further explained that the job
applications for the Lieutenant and Captain positions contained a
job description, employment application, and "the actual study
list in final form," and that when questions arose concerning
conflicting information in some of the study books, IOS sent a
letter to all applicants that they would not be asked questions
on material where the sources differed. Id. at 78.

At the next hearing on March 11, 2004, the CSB heard from
Christopher Hornick, Ph.D., an industrial/organizational
psychologist from Texas who runs a consulting business in
competition with IOS.4 See Pl. Ex. Vol. IV(D) at 7, 12. Dr.
Hornick stated that he had "not had time to study the test at
length or in detail." Id. at 13. However, he reviewed
statistics provided by the City and concluded that "we're seeing
relatively high adverse impact" from the IOS tests. Id. at 11.
He opined that his company finds "significantly and dramatically
less adverse impact in most of the test procedures that we

4Plaintiffs argue that Dr. Hornick's non-sworn, hearsay
statement at the CSB hearing is inadmissible as non-disclosed
expert evidence. Plaintiffs' argument is rejected because
defendants proffer Dr. Hornick's not for the truth of his
conclusion that the tests had a racially disparate impact, but to
show that defendants had a good faith belief, based in part on
Dr. Hornick's testimony, that such a disparate impact existed and
justified the decision not to certify the exams.

design." Id. at 12. He stated:

Normally, whites outperform ethnic minorities on the
majority of standardized testing procedures. That is,
in fact, the case with the data that we've seen in New
Haven.

I'm a little surprised at how much adverse impact there
is in these tests. And I hope at some point here we'll
be talking in detail about that. But my conclusion is
that we did have significant adverse impact. Some of
it is fairly typical of what we've seen in other areas
of the countries (sic) and other tests that people have
developed. But in other ways it is somewhat worse than
what we're typically seeing in the profession practiced
by others.

Id. at 11-12. Dr. Hornick acknowledged that he had not looked at
specific statistics from previous promotional examinations in New
Haven to compare their results with the 2003 exam results. Id.
at 14.

When asked about the reasons behind any possible disparate
impact, Dr. Hornick answered, "I'm not sure that I can explain
it," but suggested that perhaps the 60%/40% breakdown mandated by
the collective bargaining agreement could be responsible, and
further suggested that there were "perhaps different types of
testing procedures that are much more valid in terms of
identifying the best potential supervisors in your fire
department." Id. at 15. He stated that based on his interviews
with firefighters, "we know that" a written test is "not as valid
as other procedures that exist." Id. at 16. He also suggested
that "[b]y not having anyone from within the department review
the items [on the test] you inevitably get things in there" that

are not relevant to the specific department. Id. at 17-18.
Finally, Dr. Hornick identified as an alternative to traditional
written and oral testing processes "an assessment center process,
which is essentially an opportunity for candidates to demonstrate
their knowledge of the . . . standard operating procedures, to
demonstrate how they would address a particular problem as
opposed to just verbally saying it or identifying the correct
option on a written test. For example, there's concepts of
situation judgment tests that can be developed and designed,
customized within organizations that demonstrate dramatically
less adverse impacts.
"
Id. at 22-23.

At the same hearing, Vincent M. Lewis, a Fire Program
Specialist for the U.S. Department of Homeland Security, and a
retired career firefighter from Michigan, testified that he
believed the test was appropriate. He stated that he had looked
"extensively at the Lieutenant's exam and a little less at the
Captain's exam," and believed that the candidates "should know
that material." Id. at 34-35. His one comment was that "a
number of questions in the Lieutenant's exam dealt with issues
that an apparatus driver needed to know," and a candidate who had
not had such training would be disadvantaged on those questions.
Id. at 34, 41. However, he generally "felt the questions were
relevant for both exams," and believed that the New Haven
applicants were advantaged over examinees in other locations

because they were instructed exactly which chapters from the
study materials would be on the tests. Id. at 36. He stated
that he would not have changed anything about the way in which
the tests were developed, and opined that any disparate impact
could be due to a general pattern that "usually whites outperform
some of the minorities on testing, " or that "more whites
take the exam." Id. at 37-38.

The last expert witness was Dr. Janet Helms, a professor of
counseling psychology and the Director of the Institute for the
Study and Promotion of Race and Culture at Boston College. Her
area of expertise "is not with firefighters per se but is more in
the general area of how race and culture influence test
performance more generally." Id. at 43. She did not examine the
specific tests at issue. Id. at 55. However, she offered
several potential explanations for racially disparate impact on
the tests. First, "[w]e know for a fact that regardless of what
kind of written test we give in this country that we can just
about predict how many people will pass who are members of under-
represented groups. And your data are not that inconsistent
with what predictions would say were the case." Id. at 44
(emphasis supplied) . Second, Dr. Helms suggested that because
67% of the respondents in the JAQ survey were white, the
questions may have been skewed toward their job knowledge, as
"most of the literature on firefighters show that the different

[racial and gender] groups perform the job differently." Id. at
46. Relying on information she had read in newspaper accounts of
the situation in New Haven, she stated that the difference in
performance may have been due to differences in opportunities for
training and "informal mentoring" available to minorities. Id.
at 48. With respect to the oral exam, Dr. Helms suggested that
people who are bilingual or "speak accented speech" may elicit
more negative reactions from evaluators. Id. at 49-50. As
general concerns, Dr. Helms mentioned that test takers may score
lower if they are expected not to perform well, or if tests focus
on "traditional ways of doing the job and the test-taker, in
fact, uses innovative approaches." Id. at 51. Additionally, she
suggested that "removing" "socioeconomic status" from test scores
"reduces the disparate impact to some extent." Id. at 57.

At the final hearing on March 18, 2004, defendant Ude, the
Corporation Counsel, strongly advocated against certifying the
exam results. He concluded: "You have a choice. It is my
opinion that promotions under our rules as a result of these
tests would not be consistent with federal law, would not be
consistent with the purposes of our Civil Service Rules or our
Charter, nor is it in the best interests of the firefighters and
Lieutenants who took the exams." Pl. Ex. Vol. IV (E) at 15-16.
As a primary reason not to certify the results, Ude argued that
the "results of previous exams in this department and in other

departments have not had this kind of a result, which is one of
the reasons why these results were so startling when they came
down. These results were different." Id. at 19. He argued that
Dr. Hornick's statements to the CSB, standing alone, were
"sufficient" reason not to certify, and advised the board "that
it is the employer's burden to justify the use of the
examination" if a Title VII suit were brought. Id. at 21.

Defendant Walton spoke "on behalf of the Mayor" and also
advocated discarding the test results, primarily because the
eligibility list, when combined with the Rule of Three and the
number of vacancies then available, would "create a situation in
which African-Americans are excluded from promotional opportunity
on both the Captain and Lieutenant positions and Latinos are
excluded from promotional opportunity on the Lieutenant
examination." Id. at 30. She questioned whether there were
"other ways of making the selection," that would be less
"discriminatory." Id. at 31-32.

The board split two to two' on the question of certifying
each exam, see id. at 70-73, as a result of which the promotional
lists were not certified.

Plaintiffs allege that the non-certification vote was due to

5The fifth member of the CSB, Barbara Tinney Jennings, was
recused because her brother, Lt. Gary Tinney, was a candidate for
promotion on the Captain's examination. She did not attend the
hearings concerning these promotional exams.

political pressure, particularly by defendant Rev. Boise Kimber,
a vocal African-American minister who, it is acknowledged by all
parties, is a political supporter and vote-getter for Mayor
DeStefano. Plaintiffs' theory is that the defendants urged the
CSB not to certify the results in the interest of pleasing
minority voters and other constituents in New Haven whose
priority was increasing racial diversity in the ranks of the Fire
Department. Plaintiffs further argue that this pattern of
political manipulation is in keeping with prior actions by the
City of New Haven disregarding the Charter-mandated Rule of Three
in promotional decisions in the City's police and fire
departments. In support of this argument, plaintiffs proffer
evidence regarding prior litigation in the Connecticut Superior
and Appellate Court, the substance and outcome of which is
largely admitted by defendants, 6 and which resulted in sharp
rebukes against the City for violating the civil service rules.
See Pl. L.R. 56 (a) 1 Stmt. II 64-90; Def. Am. L.R. 56 (a) 2 Stmt. II
64-90. Plaintiffs argue that the apparent racial disparity in
the results of the Lieutenant and Captain exams was due to the
fact that hiring into, and promotion within, the Fire Department
historically has been based on political patronage and promotion

"Defendants challenge the relevance of this evidence;
however, as the Court held in its ruling on defendants' motion to
strike, such evidence is relevant as background information to
the present case.

of racial diversity rather than merit; and they argue that the
higher-scoring firefighters simply studied harder. In addition,
they argue that the evident disparity was not appreciably worse
on the 2003 examinations than other past promotional
examinations.

Defendants argue that "the decision not to certify [the
test] results was mandated by anti-discrimination federal, state
and local laws." Def. Mem. in Support of Mot. for Summary
Judgment [Doc. # 52] at 4. Alternatively, they argue that they
had a good faith belief that Title VII mandated non-certification
of the examinations, and they cannot be liable under Title VII
for attempting to comply with that very statute. Defendants
additionally argue that plaintiffs lack standing to bring their
Equal Protection claim, or, if they do have standing, the claim
lacks merit because all firefighters were treated the same,
regardless of race, as no one was promoted as a result of the
contested exams.

Plaintiffs counter that a "good faith belief" that
certifying the test results would violate Title VII does not
constitute a defense, as a matter of law, to an allegation of
Title VII or Equal Protection violations against the plaintiffs.

### II. Standard

Summary judgment is appropriate where "there is no genuine
issue as to any material fact and ... the moving party is

entitled to a judgment as a matter of law." Fed. R. Civ. P.
56 (c). An issue of fact is "material" if it "might affect the
outcome of the suit under the governing law, " and is "genuine" if
"the evidence is such that a reasonable jury could return a
verdict for the nonmoving party." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986) .

On cross-motions for summary judgment "neither side is
barred from asserting that there are issues of fact, sufficient
to prevent the entry of judgment, as a matter of law, against it.
When faced with cross-motions for summary judgment, a district
court is not required to grant judgment as a matter of law for
one side or the other." Heublein, Inc. v. United States, 966
F.2d 1455, 1461 (2d Cir. 1993) (citing Schwabenbauer v. Board of
Educ. of Olean, 667 F.2d 305, 313 (2d Cir. 1981) ). "Rather, the
court must evaluate each party's motion on its own merits, taking
care in each instance to draw all reasonable inferences against
the party whose motion is under consideration." Schwabembauer,
667 F.2d at 314.

#### III. Discussion

##### A. Title VII

Plaintiffs argue that defendants' decision and/or advocacy
against certifying the exam results amounted to intentional
discrimination against plaintiffs, 17 of whom are white and one
of whom is Hispanic, in favor of Hispanic and African-American.

examinees who were favored due to their race and their alleged
political support of Mayor DeStefano, via the Rev. Boise Kimber.
Plaintiffs essentially argue that defendants' professed desire to
comply with Title VII's anti-disparate-impact requirements was in
fact a pretext for intentional discrimination against white
candidates. Because plaintiffs allege intentional
discrimination, the familiar McDonnell Douglas three-prong
burden-shifting test applies.

##### 1. Burden-Shifting Framework

Under that framework, plaintiffs first must establish a
prima facie case of discrimination on account of race. See
Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000). To
do so, they must prove: (1) membership in a protected class; (2)
qualification for the position; (3) an adverse employment action;
and (4) circumstances giving rise to an inference of
discrimination on the basis of membership in the protected class.
See, e.q., McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973) , Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir.
2000). "A plaintiff's burden of establishing a prima facie case
is de minimis." Abdu-Brisson v. Delta Airlines, Inc., 239 F.3d
456, 467 (2d Cir. 2001). Defendants do not dispute the first
three prongs of the test, but argue that plaintiffs cannot
establish an inference of discrimination because all applicants
were treated the same, as nobody was promoted off the examination

lists.

Proof of a prima facie case shifts the burden to defendant
"to produce evidence that the plaintiff was [terminated] for a
legitimate, nondiscriminatory reason. This burden is one of
production, not persuasion; it can involve no credibility
assessment." Reeves v. Sanderson Plumbing, 530 U.S. 133, 142
(2000). (internal citations, quotations, and alterations omitted) .
Defendant's burden is satisfied if the proffered evidence "'taken
as true, would permit the conclusion that there was a
nondiscriminatory reason for the adverse action.'" Schnabel v.
Abramson, 232 F.3d 83, 88 (2d Cir. 2000) (quoting St. Mary's
Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993) ). In this case,
defendants proffer a good faith attempt to comply with Title VII
as their legitimate nondiscriminatory reason for refusing to
certify the exams.

If the employer articulates a neutral reason for the
plaintiff's termination, the burden shifts back to the plaintiff
to show pretext. That is, the plaintiff "may attempt .to
establish that he was the victim of intentional discrimination by
showing that the employer's proffered explanation is unworthy of
credence." Reeves, 530 U.S. at 143.

##### 2. Prima Facie Case

Plaintiffs' evidence - and defendants' own arguments - show
that the City's reasons for advocating non-certification were

related to the racial distribution of the results. As the
transcripts show, a number of witnesses at the CSB hearings,
including Kimber, mentioned "diversity" as a compelling goal of
the promotional process. Ude, Marcano, and Burgett specifically
urged the CSB not to certify the results because, given the
number of vacancies at that time, no African-Americans would be
eligible for promotion to either Lieutenant or Captain, and no
Latinos would be eligible for promotion to Captain. They
believed this to be an undesirable outcome that could subject the
City to Title VII litigation by minority firefighters, and the
City's leadership to political consequences. Had the tests not
yielded what defendants perceived as racially disparate results,
defendants would not have advocated rejecting the tests, and
plaintiffs would have had an opportunity to be promoted ..

A jury could infer that the defendants were motivated by a
concern that too many whites and not enough minorities would be
promoted were the lists to be certified. Given their minimal
prima facie burden, the Court will assume arquendo that
plaintiffs have proffered sufficient evidence to satisfy the
fourth prong of the prima facie case, given defendants'
acknowledgment that racial concerns, i.e. the disparate impact of
the test results on minority firefighters, provided the impetus
for their actions.

##### 3. Pretext/Discriminatory Intent

Defendants proffer as their legitimate non-discriminatory
reason that they desired to comply with the letter and the spirit
of Title VII. Plaintiffs deride this "feigned desire to 'comply'
with Title VII," Pl. Mem. of Law [Doc. # 81] at 3, arguing that
defendants in fact violated that statute, and their actions were
a mere pretext for promoting the interests of African-American
firefighters and political supporters of the mayor.

As plaintiffs point out, this case presents the opposite
scenario of the usual challenge to an employment or promotional
examination, as plaintiffs attack not the use of allegedly
racially discriminatory exam results, but defendants' reason for
their refusal to use the results. See Pl. Mem. of Law at 32, 34-
35. Ordinarily, as contemplated by the statute, the "complaining
party" bears the burden of proving a disparate impact, and the
"respondent" bears the burden of "demonstrat[ing] that the
challenged practice is job related for the position in question
and consistent with business necessity," or, alternatively, the
"complaining party" may prevail by showing that an alternative
employment practice with less disparate impact existed and that
the respondent failed to utilize it. See 42 U.S.C. § 2000e-2 (k) .
Here, the roles of the parties are in essence reversed, with the
defendants, normally reflecting a "respondent" role in the Title
VII disparate impact analysis, contending that use of the

promotional exams, if they had been certified, would have had an
adverse impact, and the plaintiffs, normally the "complaining
party," arguing that the test results were sufficiently job-
related to be defensible under the law.

##### a. Existence of Racially Disparate Impact

Although the parties dispute the exact racial breakdown of
candidates passing the Captain's test,7 plaintiffs do not dispute
that the results showed a racially adverse impact on African-
American candidates for both the Lieutenant and Captain
positions, as judged by the EEOC Guidelines. Pl. L.R. 56 Stmt. I
246; Def. L.R. 56 Stmt. | 246. Thus, it is necessarily
undisputed that, had minority firefighters challenged the results
of the examinations, the City would have been in a position of
defending tests that, under applicable Guidelines, presumptively
had a disparate racial impact.

Specifically, the EEOC "four-fifths rule" provides that a
selection tool that yields "[a] selection rate for any race, sex,
or ethnic group which is less than four-fifths (4/5) (or eighty
percent) of the rate for the group with the highest rate will
generally be regarded by the Federal enforcement agencies as
evidence of adverse impact, while a greater than four-fifths rate

"Plaintiffs assert that 32% of African-American examinees
passed the Captain's examination, while defendants assert the
figure is 37.5%. See Marcano Aff., Def. Ex. 4, 1 21; Pl. L.R.
56 (a) Stmt. II 244-47.

will generally not be regarded by Federal enforcement agencies as
evidence of adverse impact." 29 C.F.R. § 1607.4 (D) .

Here, the evidence shows that on the 2003 Lieutenant's exam
the pass rate for whites was 60.5%, for African-Americans 31.6%
and Hispanics 20%. The four-fifths score would be 48%. In other
words, African-Americans had a pass rate that was about half the
pass rate for Caucasians, yielding an adverse impact ratio
("AIR") of 0.59, significantly below the AIR of 0.80 that is
presumed to not evidence adverse impact under the EEOC
Guidelines. See Pl. L.R. 56 (a) Stmt. ] 246; Def. L.R. 56 (a)
Stmt. 9 246. While the parties dispute the Captain's exam pass
rate for African-Americans and Hispanics (see supra note 7), the
pass rate for Caucasians was 88%, which is more than double that
of minorities and thus by either party's statistic an AIR far
below the four-fifths guideline is yielded.

Plaintiffs argue that these AIRs were not appreciably
different from those on past promotional exams, and therefore
defendants' stated concern with avoiding adverse impact must be
pretextual. The parties agree that the AIRs on the 1999
promotional examinations would have failed the four-fifths rule
as well. The AIR for African-Americans on the 1999 Lieutenant's
exam was 0.58, compared to 0.59 on the 2003 test. See Pl. L.R.
56(a) Stmt. # 246; Def. L.R. 56(a) Stmt. # 246. The 1999 Captain
examination had an AIR of 0.45 on African-American test-takers.

See Pl. Ex. Vol. I, 40 (1999 scores) .

However, it is also undisputed that, because of the Rule of
Three, the pass rate is not synonymous with the promotion rate,
because only the top three scorers may be considered for each
vacant position. Thus, the rank of the minority applicants is
also a key factor. In 2003, given the number of vacancies, it
appeared that at most two Hispanics and no African-Americans
would have the opportunity to be promoted to Captain, and no
minorities would have the opportunity to be promoted to
Lieutenant. Although the record lacks specification, witnesses
at the CSB hearings testified to the effect that in 1999 more
minority candidates had scored toward the top of the lists, and
therefore had more promotional opportunities.

In any event, in 2003 defendants' concern was with the
absence of minority candidates potentially eligible to be
promoted, and with the diversity of the Fire Department's
management in general. Thus, the fact that the 1999 exams also
had a statistically adverse impact yet were certified, while the
2003 results were not, is insufficient in itself to show that
defendants' concerns about complying with Title VII were
pretextual.

##### b. Validation Study and Less Discriminatory Alternatives

Plaintiffs additionally argue that defendants' decision was
pretextual because they failed to complete a validation study to

test whether the 2003 exams could be defended as adequately job-
related. Going further, plaintiffs argue that defendants were
legally required to conduct such a validation study before
rendering a decision on certification of the results.

Title VII provides: "Notwithstanding any other provision
. it shall not be an unlawful employment practice for . . . an
employer to give and to act upon the results of any
professionally developed ability test provided that such test;
its administration or action upon the results is not designed,
intended or used to discriminate because of race, color,
religion, sex or national origin." 42 U.S.C. § 2000e-2 (h) . As
plaintiffs concede, this section "provides that professionally
developed and properly validated tests are a defense to a claim
of disparate impact." Def. Mem. of Law at 32 (emphasis
supplied) . The statute itself does not require employers to
implement or continue to use any test simply because it is
professionally developed, nor does it provide a defense to an
employer who "use [s]" a test with a discriminatory impact where
other less-discriminatory, equally effective, alternatives are
available. 42 U.S.C. § 2000e-2 (h) .

Although plaintiffs argue that EEOC guidelines mandated that
defendants conduct a validation study before deciding not to
certify the exams, the language of the guidelines does not
support such a requirement. A validation study is a method for

determining whether a test is sufficiently related to the
position for which the test or other criterion is administered.
The EEOC's Uniform Guidelines for Employee Selection Procedures
create a presumption that "[t]he use of any selection procedure
which has an adverse impact on the hiring, promotion, or other
employment or membership opportunities of members of any race,
sex, or ethnic group will be considered to be discriminatory and
inconsistent with these guidelines, unless the procedure has been
validated in accordance with these guidelines." 29 C.F.R. §
1607.3 (A) . The Guidelines further state:

Where two or more selection procedures are available
which serve the user's legitimate interest in efficient
and trustworthy workmanship, and which are
substantially equally valid for a given purpose, the
user should use the procedure which has been
demonstrated to have the lesser adverse impact.
Accordingly, whenever a validity study is called for by
these guidelines, the user should include, as a part of
the validity study, an investigation of suitable
alternative selection procedures and suitable
alternative methods of using the selection procedure
which have as little adverse impact as possible, to
determine the appropriateness of using or validating
them in accord with these guidelines.

Id. at § 1607.3 (B) .

Where a selection procedure results in an adverse
impact on a race, sex, or ethnic group . . . and that
group is a significant factor in the relevant labor
market, the user generally should investigate the
possible existence of unfairness for that group if it
is technically feasible to do so. The greater the
severity of the adverse impact on a group, the greater
the need to investigate the possible existence of
unfairness.

29 C.F.R. $ 1607.14 (B) (8) (b) . The Guidelines provide technical

guidance for three types of studies: criterion-related validity
studies, content validity studies, and construct validity
studies. See generally 29 C.F.R. § 1607.14.

The Guidelines are written on the assumption that the
employer would be defending a certain test and seeking to
validate such test in response to a disparate impact challenge
from protected group employees. They do not address the
situation in the present case of an employer rejecting a test
without conducting a validation study. Nonetheless, it is
evident from the language of the guidelines that a validation
study is contemplated as one method by which an employer can
defend its use of a test or other selection method it desires to
utilize by demonstration that it is sufficiently job-related to
pass muster under the statute, despite a racially adverse impact.
The guidelines do not require or mandate a validity study where
an employer decides against using a certain selection procedure
that manifests this impact and plaintiff's argument that
defendants violated Title VII by refusing to conduct a validity
study before rejecting testing results is thus unpersuasive.

Plaintiffs argue that the CSB did not have extensive
evidence of the existence of other, less-discriminatory, and
equally-effective selection measures. Dr. Hornick telephonically
testified that other tests, particularly ones he had developed,
generally yield less adverse impact, and mentioned that an

"assessment center approach" might benefit New Haven, without
specifically explaining what that approach entailed. As
plaintiffs argue, there was no testimony that an "assessment
center" approach has a demonstrably less adverse impact, and
there is some evidence in the record in this case, including from
Dr. Hornick's website, that such an approach may still have some
adverse impact. Dr. Hornick acknowledged that he had not had
time to review the exams carefully, and his comments illustrated
lack of familiarity with the methods IOS utilized to develop the
tests. He suggested that lack of internal review by members of
the New Haven Fire Department could have yielded questions that
were less relevant to the particular department, but offered no.
explanation of why such a circumstance would have an adverse
impact on minority candidates in particular. Dr. Helms from
Boston College testified that the racial disparity on the exams
at issue were not significantly different from the statistical
disparities apparent on standardized tests nationwide. Mr.
Lewis, the arson specialist from the Department of Homeland
Security, stated that he believed the tests were fair and focused
on material that a Lieutenant or Captain should know.

On the other hand, Dr. Hornick and representatives of the
black firefighters' union suggested that the 60/40 weighting
system for the oral and written examinations could have produced
an adverse impact. The testimony suggested that changing the

weighting system yielded increased minority pass rates and
diversity in the ranks of Bridgeport firefighters and officers.
Dr. Helms suggested that because different employees have
different ways of doing the same job, the fact that approximately
2/3 of those interviewed for the JAQ were white could have
unintentionally introduced a bias into the test instrument. She
and Mr. Lewis also suggested that differences in the availability
of formal training and informal mentoring may have created the
disparate effect apparent in the results.

Plaintiffs purport to counter this argument with affidavits
emphasizing how much they studied and sacrificed to perform well
on the exams, compared to their observations of the efforts of
some other examinees, and point to the availability of study
groups and informal mentoring in the department.

It appears that the reasons for testing disparities remain
elusive. Dr. Helms testified that many theories exist, but
experts on standardized testing nationwide have been unable to
satisfactorily fully explain the reasons for the disparity in
performance observed on many tests.

Plaintiffs' argument boils down to the assertion that if
defendants cannot prove that the disparities on the Lieutenant
and Captain exams were due to a particular flaw inherent in those
exams, then they should have certified the results because there
was no other alternative in place. Notwithstanding the

shortcomings in the evidence on existing, effective alternatives,
it is not the case that defendants must certify a test where they
cannot pinpoint its deficiency explaining its disparate impact
under the four-fifths rule simply because they have not yet
formulated a better selection method.

##### c. Diversity Rationale

The real crux of plaintiffs' argument is that defendants
refused to explore alternatives or conduct a validity study
because they had already decided that they did not like the
inevitable promotional results if the process continued to its
expected conclusion, and that their "diversity" rationale is
prohibited as reverse discrimination under Title VII.

In Hayden v. County of Nassau, 180 F.3d 42 (2d Cir. 1999) ,
the Second Circuit held that race-conscious configuration of an
entry-level police department exam did not violate Title VII or
the Equal Protection Clause. In that case, the Nassau County
Police Department was operating under several consent decrees
prohibiting it from engaging in discrimination in its selection
of police officers, and particularly from utilizing examinations
with disparate impact on minority applicants. Following
development of a test by the county and Department of Justice

8Plaintiffs present evidence in the form of emails from the
Mayor's staff suggesting they desired to convince the CSB not to
certify, and further suggesting that if the CSB had certified,
the Mayor would have announced his intention to refuse to forward
the lists to the Fire Department for promotion.

advisors, a validity analysis was conducted to determine which
configuration of the test was sufficiently job-related "yet
minimized the adverse impact on minority applicants. Of the
twenty-five sections administered to the applicants, the
[technical report] recommended that Nassau County use nine
sections as the . . . test." Id. at 47. A class of White and
Latino officers challenged use of the adjusted test under Title
VII and the Fourteenth Amendment, inter alia, contending that the
deliberate design of the test to reduce adverse impact on
African-American candidates necessarily discriminated against
them on the basis of race. The Court of Appeals rejected the
plaintiffs' contentions, finding plaintiffs were "mistaken in
treating racial motive as a synonym for a constitutional
violation" and observing that "[e]very antidiscrimination statute
aimed at racial discrimination, and every enforcement measure
taken under such a statute, reflect a concern with race. That
does not make such enactments or actions unlawful or
automatically suspect . . . " Id. at 48-49 (quoting Raso v. Lago,
135 F.3d 11, 16 (1st Cir.)) (internal quotation marks omitted) .
The Hayden court further held that the construction of the Nassau
County test for the purpose of minimizing adverse impact on
minorities was not intentional "reverse discrimination" against
whites because the same nine test sections were used for all
applicants, so it was "simply not analogous to a quota system or

a minority set-aside where candidates, on the basis of their
race, are not treated uniformly." Id. at 50. Rejecting
plaintiffs' argument that the design of the test reflected
impermissible discriminatory intent, the Second Circuit wrote
that "nothing in our jurisprudence precludes the use of race-
neutral means to improve racial and gender representation.
[T]he intent to remedy the disparate impact of the prior exams is
not equivalent to an intent to discriminate against non-minority
applicants." Id. at 51.

In Kirkland v. New York State Department of Correctional
Services, 771 F.2d 1117 (2d Cir. 1983), the Court of Appeals.
affirmed the district court's approval of a settlement that
determined promotional order. based partly on exam results and
partly on race-normed adjustments to the exam, after minority
employees made a prima facie showing that the test had an adverse
impact on minorities. The Court of Appeals noted that "voluntary
compliance is a preferred means of achieving Title VII's goal of
eliminating employment discrimination," id. at 1128, and that
requiring a full hearing on the test's job-validity before
approving a settlement "would seriously undermine Title VII's
preference for voluntary compliance and is not warranted," id. at
1130. Thus, "a showing of a prima facie case of employment
discrimination through a statistical demonstration of
disproportionate racial impact constitutes a sufficiently serious

claim of discrimination to serve as a predicate for a voluntary
compromise containing race-conscious remedies." Id. at 1130.
The Second Circuit expanded Kirkland in Bushey v. New York
State Civil Service Commission, 733 F.2d 220 (2d Cir. 1984) .
There, the civil service commission had administered a
promotional examination that had a significant adverse impact,
with non-minority applicants passing at almost twice the rate of
minority applicants. The defendants race-normed the scores for
each group, increasing the pass rate of the minority group to the
equivalent of the non-minority group, and effectively making an
additional 8 minority individuals eligible for promotion, without
taking any non-minorities off the list. The Court of Appeals
held that the initial results, particularly "the score
distributions of minority and nonminority candidates, were
sufficient to establish a prima facie showing of adverse impact,"
id. at 225, and, consistent with Kirkland, "a showing of a prima
facie case of employment discrimination through a statistical
demonstration of disproportional racial impact constitutes a
sufficiently serious claim of discrimination to serve as a
predicate for employer-initiated, voluntary race-conscious
remedies," id. at 228. In other words, a prima facie case is one
way that a race-conscious remedy is justified, but it is not
required: all that is required is "a sufficiently serious claim
of discrimination" to warrant such a remedy. Id. at 228; see

also id. at 226 n. 7.

In this case, the parties agree that the adverse impact
ratios for African-American and Hispanic test-takers on both the
Lieutenant and Captain exams were too low to pass muster under
the EEOC's "four-fifths rule." As Kirkland and Bushey held, a
statistical showing of discrimination, and particularly a pass
rate below the "four-fifths rule," is sufficient to make out a
prima facie case of discrimination, and therefore sufficient to
justify voluntary race-conscious remedies.9 Here, defendants'
remedy is "race conscious" at most because their actions
reflected their intent not to implement a promotional process
based on testing results that had an adverse impact on African-
Americans and Hispanics. The remedy chosen here was decidedly
less "race conscious" than the remedies in Kirkland and Bushey,

9Plaintiffs denigrate reliance on Kirkland and Bushey on the
grounds that the "race-norming" procedures utilized in those
cases would be unlawful under the 1991 amendments to the Civil
Rights Act. See 42 U.S.C. § 2000e-2 (1) ("It shall be an unlawful
employment practice for a respondent, in connection with the
selection or referral of applicants or candidates for employment
or promotion, to adjust the scores of, use different cutoff
scores for, or otherwise alter the results of, employment related
tests on the basis of race, color, religion, sex, or national
origin."). See also Hayden, 180 F.3d at 53 (this provision was
"intended to prohibit 'race norming' and other methods of using
different cut-offs for different races or altering scores based
on race.") (emphasis in original). While plaintiffs are correct
that Title VII now prohibits race-norming, none is alleged to
have happened here and the 1991 amendments do not affect the
reasoning and holding of either case, namely, that a showing of a
"sufficiently serious claim of discrimination" is adequate to
justify race conscious, remedial measures.

because New Haven did not race-norm the scores, they simply
decided to start over, to develop some new assessment mechanism
with less disparate impact. Thus, while the evidence shows that
race was taken into account in the decision not to certify the
test results, the result was race-neutral: all the test results
were discarded, no one was promoted, and firefighters of every
race will have to participate in another selection process to be
considered for promotion. Indeed, there is a total absence of
any evidence of discriminatory animus towards plaintiffs - under
the reasoning of Hayden, 180 F.3d at 51, "nothing in our
jurisprudence precludes the use of race-neutral means to improve
racial and gender representation.
[T]he intent to remedy
the disparate impact of the prior exams is not equivalent to an
intent to discriminate against non-minority applicants."10

10Taxman v. Bd. of Educ. of T'wp of Piscataway, 91 F.3d
1547, 1558 (3d Cir. 1996) (en banc), cert. dismissed, 522 U.S.
1010 (1997), relied on by plaintiffs, is readily distinguishable.
There, the board of education relied on an affirmative action
plan to defend its decision to lay off a white teacher instead of
a black teacher with equal seniority, and the Third Circuit held
that promoting racial diversity on the faculty, absent a history
of past discrimination, was insufficient justification for laying
off the white teacher because of her race and violated Title VII.
Here, defendants had ample statistical evidence that the tests
had an adverse impact on minority candidates and importantly did
not opt to select black applicants over white applicants for
promotion, but rather decided to select nobody at all. Williams
v. Consol. City of Jacksonville, No. 00cv469, 2002 U.S. Dist.
LEXIS 27066 (D. Fla. July 5, 2002), can similarly be
distinguished as that case did not concern a decision not to
certify test results, but rather a post-certification decision
not to create the positions which would result in plaintiffs'
promotions because plaintiffs were not African-American.

Plaintiffs contend that Hayden is distinguishable by the
fact that the remedy approved there was pursuant to previous
consent decrees; they do not explain why they view this
distinction as significant. As Bushey held, it would contravene
the remedial purpose of Title VII if an employer were required to
await a lawsuit before voluntarily implementing measures with
less discriminatory impact. Bushey, 733 F.2d at 227 (rejecting
the plaintiffs' argument that the remedial measures in
Kirkland were only permissible as part of a settlement in that
case, because that "would create an anomalous situation. It
would require an employer . . . to issue a presumptively
discriminatory eligibility list, wait to be sued by minority
candidates, and only then seek a settlement .... Such an approach
would serve no purpose other than to impede the process of
voluntary compliance with Title VII and cause the proliferation
of litigation in all such cases. . . . ") .

Plaintiffs also attempt to distinguish Hayden on the grounds
that the challengers to that test, which was constructed from the
nine most job-related sections with the least disparate impact,
were not injured or disadvantaged, whereas "the instant
plaintiffs have been both injured, as they were deprived of
promotions, and disadvantaged as they will now be forced to
compete once again." Pl. Mem. of Law at 58. Plaintiffs take
this language from Hayden out of context. In holding that the

Hayden plaintiffs did not prove disparate impact on nonminority
applicants, the Court of Appeals held that because "appellants
continued to score higher than black candidates, on average, the
exam did not impair or disadvantage these appellants in favor of
African-American applicants. Thus, appellants are unable to set
forth a claim that they endured any disparate impact as a result
of the design and administration of the . . . examination."
Hayden, 180 F.3d at 52. Here, plaintiffs. allege disparate
treatment, not disparate impact. Nor do they have a viable claim
of disparate impact because the decision to disregard the test
results affected all applicants equally, regardless of race - all
applicants will have to participate in a new test or selection
procedure. 11

Furthermore, plaintiffs were not "deprived of promotions."
As the parties agree, under New Haven's civil service rules, no
applicant is entitled to promotion unless and until the CSB
certifies the results. Even then, application of the Rule of
Three would give top scorers an opportunity for promotion,
depending on the number of vacancies, but no guarantee of

11While plaintiffs, who describe their considerable efforts
to perform well on this infrequently given promotion exam, are
understandably disappointed and frustrated that their successful
study efforts have come to naught this time, this result is not
evidence of being disadvantaged because of their race nor
evidence of disparate impact because it does not show injury or
disadvantage, only uncertainty as to their performance in the
City's next promotion selection process.

promotion; it is even conceivable that the applicant with the
highest score never would be promoted. See United States v. City
of Chicago, 869 F.2d 1033, 1038 (7th Cir. 1989) (where state law
permitted promotion from among five highest-ranked individuals on
eligibility list, challenger had no property right to promotion:
"a roster ranking may create an expectation of promotion, but an
officer has no entitlement to a particular roster position or to
promotion.") ; Bridgeport Firebird Society v. City of Bridgeport,
686 F. Supp. 53, 58 ("At best, the provisions of the City Charter
[mandating a Rule of One for promotions] provide the firefighters
ranked on the
eligibility list only with a mere expectation
of promotion, which does not rise to the level of a legally
protected interest, especially in the face of 'presumptively
discriminatory employment practices.'") (quoting Kirkland, 711 F.
2d at 1126) ) .

Thus, while the facts of Hayden were slightly different than
those here, the Court finds the holding quite relevant and
instructive. Defendants' motivation to avoid making promotions
based on a test with a racially disparate impact, even in a
political context, 12 does not, as a matter of law, constitute

12Assuming arquendo that political favoritism or motivations
may be shown to have been intertwined with the race concern, that
does not suffice to establish a Title VII violation. See, e.q.,
EEOC v. Flasher Co., Inc., 986 F.2d 1312, 1321 (10th Cir. 1992)
(pretext is not shown merely because "some less seemly reason -
personal or political favoritism, a grudge, random conduct, an
error in the administration of neutral rules - actually accounts

discriminatory intent, and therefore such evidence is "
insufficient for plaintiffs to prevail on their Title VII claim.
Accordingly, the Court will grant defendants' motion and deny
plaintiffs' motion for summary judgment on this claim.

## B. Equal Protection Claim

Plaintiffs argue that defendants violated the Equal
Protection Clause either by employing a race-based classification
system for promotion or, alternatively, by applying facially
neutral promotion criteria in a racially discriminatory manner.
Defendants counter that they did not employ any racial
classifications because every applicant was treated the same when
the CSB decided that nobody would be promoted off the lists, and
there was no discriminatory intent against whites motivating
their non-certification decision. Additionally, defendants argue
that plaintiffs lack standing to bring an Equal Protection claim.

## 1. Standing

Defendants acknowledge, as they must, that non-minorities
have been found to be in a protected group for purposes of
standing under the Equal Protection Clause. See, e.q., Adarand
Constructors, Inc. v. Pena, 515 U.S. 200, 210 (1995) (holding
that non-minority-owned business' "allegation that it has lost a
contract in the past because of a [minority set-aside]
subcontractor compensation clause of course entitles it to seek

damages for the loss of that contract."). However, defendants
argue that because plaintiffs have not suffered any harm, and
specifically because plaintiffs were not "passed over for a
benefit that was given to an allegedly less deserving minority,"
Def. Reply Mem. at 37, they lack standing.

Defendants confuse standing with the merits of the case.
The constitutional injury plaintiffs claim here is not failure to
be promoted, but failure to be treated equally on the basis of
race. Plaintiffs have standing to bring such a claim. See Comer
v. Cisneros, 37 F.3d 775, 791 (2d Cir. 1994) (plaintiff had
standing to bring equal protection claim where she alleged that
the defendant's Section 8 housing subsidy program "rules and
regulations, in their administration, violate the Constitution
because they erect a barrier that makes it more difficult for
economically disadvantaged blacks to obtain a housing benefit
than it was for non-minorities") .

### 2. Racial Classification/Discriminatory Intent

Plaintiffs' Equal Protection claim, however, lacks merit,
with respect to both the racial classification and disparate
treatment arguments. As the Second Circuit held in Hayden when
rejecting plaintiffs' classification argument, if an exam is
"administered and scored in an identical fashion for all
applicants," there is no racial classification. Hayden, 180 F.3d
at 48. Further, a "desire" "to design an entrance exam which

would diminish the adverse impact on black applicants ... does
not constitute a 'racial classification.'" Id. Here, all
applicants took the same test, and the result was the same for
all because the test results were discarded and nobody was
promoted. This does not amount to a facial classification based
on race.13 Likewise, where a test is administered and scored in
the same manner for all applicants, plaintiffs cannot make out a
claim that the exam was a facially neutral test used in a
discriminatory manner. Id. at 50.

Plaintiffs argue that their equal protection rights were
violated because they passed the tests and therefore were not
similarly-situated to minority applicants who failed. Plaintiffs
argue that if a black employee "shows up for work and works a
full day" and a white employee does not, and the black employee

13Therefore, plaintiffs' reliance on Berkley v. United
States, 287 F.3d 1076 (Fed. Cir. 2002), is unavailing. In that
case, the Air Force employed facially different criteria for
selecting women and minority employees for layoff compared to
white male employees, and the Federal Circuit held that such a
program should be subjected to strict scrutiny (without ruling on
the merits) . Likewise, in Dallas Fire Fighters Assoc. v City of
Dallas, 150 F.3d 438 (5th Cir. 1998), also relied on by
plaintiffs, the city followed an affirmative action plan that
specifically called for promoting African-American, Hispanic and
female firefighters out of rank, ahead of white and Native
American male fighters with higher test scores. Here, no
classification system was employed, as the test results were
discarded for every examinee regardless of race. While
defendants clearly were concerned with achieving diversity in the
department by enhancing minority promotional opportunity,
plaintiffs offer no evidence that defendants employed an actual
race-based affirmative action plan that advantaged minority over
white applicants for promotion.

complains "that he was due his wages," the employer cannot be
heard to defend the complaint on the ground that the employees
were treated the same because neither was paid. Pl. Mem. in Opp.
at 64. Plaintiffs' analogy is faulty because performing well on
the exam does not create an entitlement to promotion, whereas
working entitles an employee to be paid. Second, a presumptively
flawed test result may not be a proper measure for determining
whether anyone should be promoted.

Finally, plaintiffs cannot show that defendants acted out of
an intentionally discriminatory purpose. "Discriminatory purpose
'implies that the decisionmaker ... selected or reaffirmed a
particular course of action at least in part 'because of,' not
merely 'in spite of,' its adverse effects upon an identifiable
group.'" Id. (quoting Personnel Administrator v. Feeney, 442 U.S.
256, 279 (1979) ) . Nothing in the record in this case suggests
that the City defendants or CSB acted "because of" discriminatory
animus toward plaintiffs or other non-minority applicants for
promotion. Rather, they acted based on the following concerns:
that the test had a statistically adverse impact on African-
American and Hispanic examinees; that promoting off of this list
would undermine their goal of diversity in the Fire Department
and would fail to develop managerial role models for aspiring
firefighters; that it would subject the City to public criticism;
and that it would likely subject the City to Title VII lawsuits

from minority applicants that, for political reasons, the City
did not want to defend. "[T]he intent to remedy the disparate
impact of [the tests] is not equivalent to an intent to
discriminate against non-minority applicants." Hayden, 180 F.3d
at 51. None of the defendants' expressed motives could suggest
to a reasonable juror that defendants acted "because of" animus
against non-minority firefighters who took the Lieutenant and
Captain exams ..

Accordingly, defendants' motion for summary judgment on this
claim will be granted and plaintiffs' motion will be denied. 14

#### C. Civil Rights Conspiracy

Title 42 U.S.C. § 1985(3) permits recovery of damages if a
plaintiff can prove a conspiracy "for the purpose of depriving,
either directly or indirectly, any person or class of persons of
the equal protection of the laws, or of equal privileges and
immunities under the laws." Because the Court has found that
plaintiffs fail to present sufficient evidence that their equal
protection rights were violated, their § 1985 conspiracy claim
must fail as well. See Mian v. Donaldson, Lufkin & Jenrette
Securities Corp., 7 F.3d 1085, 1088 (2d Cir. 1993) (evidence of
"racial or perhaps otherwise class-based, invidious
discriminatory animus" required to prevail on § 1985 claim) .

14For this reason the Court need not reach defendants'
arguments that they are entitled to qualified immunity on the
Equal Protection claim.

Accordingly, defendants' motion for summary judgment on this
claim will be granted.

#### D. First Amendment

Defendants additionally move for summary judgment on
plaintiffs' First Amendment freedom-of-association claim, which
motion will also be granted.

Plaintiffs do not attempt to rebut defendants' contentions
that plaintiffs have not identified a free speech activity in
which they participated nor claimed that any chilling of speech
resulted. Rather, plaintiffs argue that the CSB's non-
certification decision, and the City defendants' advocacy of that
decision, resulted from political pressure by defendant Kimber,
who threatened the CSB with "political ramifications" if they
voted to certify the results. Plaintiffs argue that "a jury
could rationally infer that city officials worked behind the
scenes to sabotage the promotional examinations because they knew
that, were the exams certified, the Mayor would incur the wrath
of Kimber and other influential leaders of New Haven's African-
American community." Pl. Mem. in Opp. at 73.

While a jury could make such an inference, it would not lead
to the conclusion that plaintiffs' First Amendment right to
freedom of association was violated as a matter of law. The
evidence shows that Kimber spoke at the first CSB hearing and
strenuously argued against certification, and the City defendants

do not dispute that Kimber is a close political ally of the
Mayor. However, there is no evidence in the record to suggest
that the non-certification decision was made in retaliation for
plaintiffs' refusal to "associate with," or their expression of
disagreement with, Kimber. As with the Equal Protection claim,
the fact that defendants desired to avoid the wrath of one group
(in this case African-American firefighters and other political
supporters of Kimber and DeStefano) does not logically lead to
the conclusion that defendants intended to discriminate or
retaliate against plaintiffs because they were not members of
that group. More importantly, there is no evidence in the record
even to suggest that defendants knew plaintiffs' political
affiliations, i.e., whether they supported Kimber and/or
DeStefano on any issue other than the certification of these
particular exam results. In sum, in plaintiffs' terms, the
record shows that defendants acted to head off. the potential
adverse impact of the promotion tests on African-American and
Hispanic firefighters in order to curry favor with minority
voters and political leaders in the City, but it does not contain
any evidence of an intent or purpose to target plaintiffs for not
supporting that political coalition or its interests. Thus,
defendants' motion for summary judgment on the First Amendment
claim must be granted.

#### E. Intentional Infliction of Emotional Distress

Having granted defendants summary judgment on all of
plaintiffs' federal claims, the Court declines pursuant to 28
U.S.C. § 1367 (c) to exercise supplemental jurisdiction over
plaintiffs' state law claim for intentional infliction of
emotional distress. See Tops Markets, Inc. v. Quality Markets,
Inc., 142 F.3d 90, 103 (2d Cir. 1998) ("28 U.S.C. § 1367 (c) (3) .
. . permits a district court, in its discretion, to decline to
exercise supplemental jurisdiction over state law claims if it
has dismissed all federal claims. The Supreme Court, in
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988),
announced that when all federal claims are eliminated in the
early stages of litigation, the balance of factors generally
favors declining to exercise pendent jurisdiction over remaining
state law claims and dismissing them without prejudice.") .

#### IV. Conclusion

Accordingly, defendants' motion for summary judgment [Doc. #
52] is GRANTED as to the claims under Title VII, the Equal
Protection Clause, 42 U.S.C. § 1985, and the First Amendment.
Plaintiffs' cross-motion for summary judgment [Doc. # 60] is
DENIED. The Court declines supplemental jurisdiction over
plaintiffs' claim for intentional infliction of emotional

distress. The Clerk is directed to close this case.

IT IS SO ORDERED.

/s/
Janet Bond Arterton
United States District Judge

Dated at New Haven, Connecticut this 28th day of September, 2006.

August Term, 2007 Argued: December 10, 2007 Decided: June 9, 2008 Order issued: June… v. - John Destefano, Karen Dubois-Walton, Thomas Ude Jr., Tina Burgett, Boise Kimber,…

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