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Divided 2nd Circuit Denies Hearing by Full Court in Bias Case
New York Law Journal
June 13, 2008
A sharply divided 2nd U.S. Circuit Court of Appeals has declined to rehear en banc a controversial Title VII case that may be headed for the U.S. Supreme Court.
Seven active judges of the circuit voted against a full rehearing of a case brought by firefighters who claimed the city of New Haven violated Title VII by its refusal to certify the results of two promotional exams. Six dissented from the denial in Ricci v. DeStefano, 06-4996-cv.
The "Rule of Three" in New Haven's city charter requires that vacancies must be filled from among the three people with the highest scores on the exams. Under the results of the 2003 tests, no blacks and at most two Hispanics would have been eligible for promotion to captain and no blacks or Hispanics would have been eligible to make lieutenant.
The city's civil service board decided after four hearings on the issue that certifying the results would have a disparate impact on blacks in the department seeking to become lieutenants and captains. The plaintiffs, 17 whites and one Hispanic, sued under Title VII of the federal Civil Rights Act and the Equal Protection Clause of the Constitution, arguing that the city defendants urged the civil service board not to certify the results, because they wanted to appease minority voters and others whose priority was to increase racial diversity in the ranks of the fire department.
Connecticut District Judge Janet Bond Arterton granted summary judgment for New Haven and individual defendants on Sept. 28, 2006.
On Feb. 15, 2008, 2nd Circuit Judges Rosemary Pooler, Robert Sack and Sonia Sotomayor upheld that decision by summary order, saying "In this case, we are not unsympathetic to the plaintiffs' expressions of frustration" but that they had not presented 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 panel said.
But one 2nd Circuit judge thought the issue should be reheard en banc and asked for a poll of all active judges.
Three days prior to the filing of opinions against and for rehearing en banc, the three-judge panel withdrew its summary order and issued a per curiam opinion adopting the reasoning of Arterton.
Thursday, Pooler, Sack and Sotomayor were joined in voting against a rehearing en banc by Judges Guido Calabresi, Chester Straub, Robert Katzmann and Barrington Parker.
Dissenting from the denial were Judges Dennis Jacobs, Jose Cabranes, Reena Raggi, Richard Wesley, Peter Hall and Debra Ann Livingston.
Katzmann issued a brief concurring opinion saying deference to the original panel's decision was warranted, noting that there was a petition for a writ of certiorari pending at the U.S. Supreme Court and arguing that the issues are already "sharply defined" for the Supreme Court. He was joined in that opinion by Parker and the members of the original panel.
Parker issued his own concurring opinion, joined in by Calabresi and the members of the original panel.
Cabranes wrote for the dissenters, saying the appeal "raises important questions of first impression in our circuit."
The core question, he said, was this: "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?"
Cabranes questioned the use of the per curiam opinion issued Monday by the original panel after it had withdrawn the summary order.
He said the "use of per curiam opinions of this sort, adopting the full 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."
But the issues in this case, Cabranes said, "are indisputably complex and far from well-settled," including whether the Equal Protection Clause bars a city from discarding exam results because "'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?"
Cabranes also asked whether such a practice amounted to "an unconstitutional racial quota or set-aside," and "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?"
Parker took issue with the dissent for assuming there was a lack of U.S. Supreme Court or 2nd Circuit guidance on the issue.
He said a line of cases including Hayden v. County of Nassau, 180 F. 3d 42 (2d Cir, 1999) "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 liability."
He said Cabranes' dissent was "entirely mistaken" in suggesting that the plaintiff firefighters "produced evidence of a racial classification or the imposition of a quota."
"Although the city acted out of a concern that certifying the exam results would have an adverse impact on minority candidates ... the city's response, to decline to certify any of the exams, was facially race-neutral," Parker said. "The city did not classify or confer any actual benefit on applicants because of race."
Karen Lee Torre of New Haven represented the plaintiffs.
Richard A, Roberts of Nuzzo & Roberts in Cheshire, Conn., represented the city. He said city officials were "between a rock and a hard place."
"This was a carefully considered decision. The city officials deferred to the civil service commission and their decision ultimately not to certify was based on their belief that by using that exam, they would be discriminating against minority candidates," said Roberts. "They are trying to promote fairly but they are also obliged to comply with Title VII ... What they were really doing is saying, 'Let's take a step back and try to do this better.'"
