Briscoe v. City of New Haven, No. 10-1975 (2d Cir. 2011)
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Plaintiff, an African-American firefighter for the City of New Haven, alleged that the firefighter promotion exams challenged in Ricci v. DeStefano were arbitrarily weighted, yielding an impermissible disparate impact. The district court dismissed the claim as "necessarily foreclosed" by Ricci. The court vacated the judgment of the district court and remanded for further proceedings, but expressed no view as to whether dismissal was warranted based on other defenses raised by the city.
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10-1975-cv Briscoe v. City of New Haven 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2010 (Argued: April 8, 2011 Decided: August 15, 2011) Docket No. 10-1975-cv - - - - - - - - - - - - - - - - - - - - -x MICHAEL BRISCOE, Plaintiff-Appellant, - v.CITY OF NEW HAVEN, Defendant-Appellee. - - - - - - - - - - - - - - - - - - - -x 26 27 Before: 28 This appeal raises a disparate-impact issue that was JACOBS, Chief Judge, WINTER and CABRANES, Circuit Judges. 29 expressly anticipated in Ricci v. DeStefano, 129 S. Ct. 2658 30 (2009), and which has arisen in the aftermath of that case. 31 Michael Briscoe, an African-American firefighter for the 32 City of New Haven, alleges that the firefighter promotion 33 exams challenged in Ricci (whose results the Supreme Court 34 ordered to be certified) were arbitrarily weighted, yielding 35 an impermissible disparate impact. The United States 1 District Court for the District of Connecticut (Haight, J.) 2 dismissed the claim as necessarily foreclosed by Ricci. 3 We vacate the judgment of the district court and remand 4 for further proceedings, but express no view as to whether 5 dismissal is warranted based on other defenses raised by the 6 city below. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DAVID N. ROSEN, David Rosen & Associates, P.C., New Haven, CT, for Plaintiff-Appellant. VICTOR A. BOLDEN (Richard A. Roberts and Stacey L. Pitcher, Nuzzo & Roberts, L.L.C., Cheshire, CT, Lawrence D. Rosenberg, Jones Day, Washington, DC, and Kathleen M. Foster, Office of Corporation Counsel, City of New Haven, CT, on the brief), Office of Corporation Counsel, New Haven, CT, for Defendant-Appellee. Karen Lee Torre, Law Offices of Norman A. Pattis, LLC, Bethany, CT, for Amicus Curiae Frank Ricci et al. DENNIS JACOBS, Chief Judge: This appeal raises a disparate-impact issue that was 26 expressly anticipated in Ricci v. DeStefano, 129 S. Ct. 2658 27 (2009), and which has arisen in the aftermath of that case. 28 The City of New Haven and the New Haven Civil Service 29 Board ( CSB ), which administer the city s firefighter 30 promotion exams, had been concerned that white candidates 2 1 had outperformed minority candidates on the 2003 exams. 2 city feared that certifying the results would trigger 3 disparate-impact liability under Title VII. 4 tense public hearings concerning certification, the CSB 5 ultimately discarded the results. 6 The After several In Ricci, eighteen firefighters (seventeen white and 7 one Hispanic) alleged that the CSB s refusal to certify the 8 results constituted disparate treatment under Title VII. 9 129 S. Ct. at 2671. The Supreme Court agreed, 10 notwithstanding the city s countervailing concern about 11 disparate-impact liability. 12 can excuse an otherwise impermissible action only if 13 supported by a strong basis in evidence that the employer 14 would have faced disparate-impact liability had it acted 15 otherwise. 16 Such concern, the Court held, Id. at 2677. Unusually, the Court reversed the challenged judgment 17 rather than vacating it, which prevented the city from 18 adducing evidence to satisfy the newly imposed strong 19 basis standard. 20 the results. 21 anticipated a challenge to the city s compliance with the 22 order: Instead, the city was ordered to certify Id. at 2677, 2681. 3 Presciently, the Court 1 2 3 4 5 6 7 8 9 10 11 12 13 Our holding today clarifies how Title VII applies to resolve competing expectations under the disparate-treatment and disparate-impact provisions. If, after it certifies the test results, the City faces a disparate-impact suit, then in light of our holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability. Id. at 2681. Briscoe brings the anticipated lawsuit, alleging that 14 the weighting of the written and oral sections of the test-- 15 60% and 40%, respectively, as dictated by the collective 16 bargaining agreement between the city and the firefighters 17 union, id. at 2679--was arbitrary and unrelated to job 18 requirements. 19 weighting was 30% written/70% oral; under that scoring, he 20 was promotable. 21 from using the 60/40 weighting, and (2) eligibility for 22 promotion to lieutenant (with retroactive pay and 23 seniority), without displacing any of the Ricci plaintiffs 24 who were promoted. 25 He asserts that the industry norm for such He seeks primarily (1) to enjoin the city The city argued in the district court that the Supreme 26 Court s decision in Ricci precludes the plaintiff s Title 27 VII claim. Def. s Mot. to Dis. at 7. 4 The court apparently 1 agreed, granting the city s motion to dismiss on preclusion 2 grounds: What the Court held in Ricci and what it said in doing so squarely forecloses Briscoe s claims. The Supreme Court remanded [Ricci] with directions that the 2003 exam results be certified. That has been done and promotions have been made accordingly. Briscoe cannot now raise a disparate impact claim with respect to those same exam results. 3 4 5 6 7 8 9 10 11 12 Briscoe v. City of New Haven, No. 09-cv-1642, 2010 U.S. 13 Dist. LEXIS 69018, at *27 (D. Conn. July 12, 2010). 14 court acknowledged that its ruling may deny Briscoe his day 15 in court, but felt obliged to effect its interpretation of 16 the Supreme Court s mandate: 17 18 19 20 21 The If, as he contends, Briscoe is denied his day in court or is bound by a decision in a case to which he was not a party, it is because the Supreme Court decided as much, and this court is bound by the decisions of the high court. 22 Id. at *22. 23 court reasoned, he should have timely intervened in Ricci.1 24 Id. at *25. Had Briscoe wished to protect his rights, the 1 Briscoe moved to intervene in Ricci, but only after the Supreme Court s remand. By that time it was too late to adduce evidence or champion the 60/40 weighting issue. (He sought to intervene merely to forestall any argument by the City that the resolution of his underlying claim should be dictated by the choice to file a separate suit rather than moving to intervene. Joint Appendix at 194 (internal quotation marks omitted).) The motion was denied. 5 1 Curiously, the city now rejects the preclusion theory 2 it argued in the district court. 3 only one raising claim preclusion is [Briscoe]. 4 Complaint was dismissed not because it was legally 5 precluded,2 but because disparate treatment liability was 6 already found. (footnote added)). 7 Ricci s strong basis in evidence test for a disparate- 8 treatment claim applies equally to a disparate-impact 9 claim.3 Id. at 12. Appellee Br. at 23 ( The The Amended It argues instead that Based on that premise, the city argues 10 that it had a strong basis in evidence that it was facing 11 disparate-treatment liability. 12 cited by the city is the Ricci decision itself, id. at 11, 13 in which the Court concluded that failing to certify the 14 exam results constituted disparate-treatment under Title 15 VII. Id. at 14. The evidence 2 The city thus disputes that the district court opinion rested on preclusion grounds, but fails to discuss the passages that clearly implicate preclusion principles. 3 Ricci held that before an employer can engage in intentional discrimination . . . [it] must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action. 129 S. Ct. at 2677. The city s argument is thus that an employer can engage in conduct yielding a disparate impact if it has a strong basis in evidence to believe it will be subject to disparate-treatment liability if it acts otherwise. 6 1 We review de novo the district court s dismissal of an 2 action under Fed. R. Civ. P. 12(b)(6) for failure to state a 3 claim. 4 Cir. 2009). 5 arguments in turn. Selevan v. N.Y. Thruway Auth., 584 F.3d 82, 88 (2d We consider the preclusion and two-way Ricci 6 7 8 9 I The district court ascribed preclusive effect to the sentence in Ricci that predicted a Briscoe-type claim, even 10 though the wording did not expressly invoke preclusion. 11 district court s theory is inconsistent with well-settled 12 principles of nonparty preclusion. The 13 14 15 A The general principle in Anglo-American jurisprudence 16 is that one is not bound by a judgment in personam in a 17 litigation in which he is not designated as a party or to 18 which he has not been made a party by service of process. 19 Hansberry v. Lee, 311 U.S. 32, 40 (1940). 20 avoids impos[ing] upon any person absolutely entitled to a 21 hearing the burden of voluntary intervention in a suit to 22 which he is a stranger. The law therefore Chase Nat l Bank v. Norwalk, 291 7 1 2 U.S. 431, 441 (1934). Though hardly in doubt, th[is] rule against nonparty 3 preclusion is subject to exceptions. Taylor v. Sturgell, 4 553 U.S. 880, 893 (2008). 5 recognized categories of nonparty preclusion, id. at 893-95, 6 but rejected in that case an exception for instances of 7 virtual representation. 4 8 categories: The preclusive effects of a judgment in a 9 federal-question case decided by a federal court Taylor enumerated the six We therefore consult these six 10 should . . . be determined according to the established 11 grounds for nonparty preclusion described in [Taylor]. 12 at 904. 13 that this case fits any of the recognized exceptions. 14 any event, it does not: 15 Id. The city does not cite Taylor, and does not argue In First, Briscoe did not agree to be bound by the 16 determination of the issues in Ricci. 17 existing substantive legal relationship existed between 18 the city and Briscoe that is akin to a bailee and bailor 4 Second, no pre- Two friends brought separate Freedom of Information Act suits seeking certain documents from the Federal Aviation Administration. The first suit was unsuccessful. The second suit was dismissed on the ground that the plaintiff s friend (who brought the first suit) qualified as his virtual representative, despite the lack of evidence that the plaintiff controlled, financed, participated in, or even had notice of [the] earlier suit. Id. at 885. 8 1 or assignee and assignor. 2 adequately represented by the city in Ricci, because their 3 interests are widely divergent. 4 assume[] control over the Ricci litigation, or have the 5 opportunity to present proofs and argument. 6 Briscoe is not avoiding preclusive force by relitigating 7 through a proxy. 8 bankruptcy or probate is present. 9 considered a special statutory scheme, the city has not Third, Briscoe was not Fourth, Briscoe did not Fifth, Sixth, no special statutory scheme such as (Even if Title VII is 10 complied with the statute s preclusion provision, as 11 discussed below). See Taylor, 553 U.S. at 893-95. 12 13 14 B The unavailability of nonparty preclusion is a 15 recurring problem in Title VII litigation. 16 Wilks, 490 U.S. 755 (1989), a group of white firefighters 17 challenged the City of Birmingham s acquiescence to a series 18 of consent decrees that settled a Title VII lawsuit, brought 19 by the NAACP and several black firefighters, alleging 20 racially discriminatory hiring practices. 21 The consent decrees set forth an extensive remedial 22 scheme, including annual and long-term goals for hiring 9 In Martin v. Id. at 758-59. 1 black firefighters. 2 hiring practices accordingly, the plaintiffs in Martin 3 alleged that the city s compliance with the decrees amounted 4 to discriminatory treatment under Title VII, id. at 759-60; 5 the city argued that the suit was an impermissible 6 collateral attack[] on the decrees. 7 Id. at 759. When the city altered its Id. at 760. Underscoring the deep-rooted historic tradition that 8 everyone should have his own day in court, the Supreme 9 Court held that the consent decrees were not preclusive 10 because the plaintiffs were not parties to the original 11 action. 12 marks omitted). 13 white firefighters should have protected their rights by 14 intervening in the original suit, the Court ruled that a 15 party seeking a judgment binding on another cannot obligate 16 that person to intervene; he must be joined. 17 The Court placed the burden on the parties of a lawsuit--who 18 presumably know better than anyone else the nature and 19 scope of relief sought in the action, and at whose expense 20 such relief might be granted --to bring in additional 21 parties when necessary. 22 Id. at 762, 768 (internal citations and quotation Rejecting the city s argument that the Id. at 763. Id. at 765. The Martin Court thus upheld the general rule that a 10 1 person cannot be deprived of his legal rights in a 2 proceeding to which he is not a party. Id. at 759. 3 4 5 C In evident recognition that Martin hindered the 6 finality of Title VII dispositions, Congress created a way 7 by which litigants can bind certain nonparties who would 8 otherwise stay on the sidelines. 9 2(n)(1). See 42 U.S.C. § 2000e- Under § 2000e-2(n), an employment practice that 10 implements and is within the scope of a [Title VII] 11 litigated or consent judgment or order may not be 12 challenged by a person who had actual notice of the proposed 13 judgment or order and a reasonable opportunity to present 14 objections to such judgment or order by a future date 15 certain. 16 [§ 2000e-2(n)] is to protect valid decrees from subsequent 17 attack by individuals who were fully apprised of their 18 interest in litigation and given an opportunity to 19 participate, but who declined that opportunity. See § 2000e-2(n)(1)(A), (B)(i).5 5 The intent of 137 Cong. Section 2000e-2(n)(1)(B)(i)(II) also enables preclusion of a person whose interests were adequately represented by another person who challenged the judgment. The city does not contend that it adequately represented Briscoe s interests. 11 1 Rec. 29,039 (1991). 2 It cannot be said that Briscoe had a reasonable 3 opportunity to present objections to the Ricci judgment, 4 within the meaning of § 2000e-2(n). 5 opportunity to present objections by a future date certain 6 suggests a formal process. 7 if not always, secured through notice and a fairness 8 hearing. 9 F.3d 123, 127 (2d Cir. 2001) ( The parties moved the The requirement for an Compliance is therefore usually, See, e.g., Brennan v. N.Y. City Bd. of Educ., 260 10 district court to hold a fairness hearing at which 11 objections to the Agreement would be heard. (citing 12 § 2000e-2(n))); Sims v. Montgomery Cnty. Comm n, 9 F. Supp. 13 2d 1281, 1286 (M.D. Ala. 1998) ( [T]he notice and fairness 14 hearing were sufficient under the Civil Rights Act of 1991. 15 (citing § 2000e-2(n)(1))). 16 fairness hearing in Ricci: The defendants were awarded 17 summary judgment by the district court, and the case was not 18 revived until the Supreme Court mandated entry of judgment 19 in favor of the Ricci plaintiffs. 20 But there was no pre-judgment In any event, the city has abandoned the argument it 21 made below that the Ricci proceedings satisfied § 2000e- 22 2(n). See Appellee Br. at 17 ( Neither Martin nor § 2000e- 12 1 2(n) are relevant to the present case. ). 2 2000e-2(n) therefore does not insulate the city s 3 certification of the test results. 4 5 * * Section * For these reasons, under well-settled Supreme Court 6 precedent, Briscoe s claim is not precluded by Ricci 7 (notwithstanding Briscoe s knowledge that the proceedings 8 were pending and his failure to timely intervene). 9 skeptical that the Court would use one sentence in Ricci to 10 silently revise preclusion principles that were unanimously 11 reaffirmed just over a year before in Taylor. We are 12 13 II 14 The city s primary argument is for a broad, two-way 15 reading of Ricci s strong basis in evidence standard. 16 argument requires us to consider this standard for the first 17 time.6 6 The We have no need to consider, much less invite adherence to, the extended dicta as to the potential contours of the doctrine for a disparate-treatment claim offered in United States v. Brennan, No. 08-5171-cv, 2011 U.S. App. LEXIS 9455, at *123-37, *168-88 (2d Cir. May 5, 2011); id. at *218-19 (Raggi, J., concurring in the judgment) (cautioning that majority opinion . . . yields an abundance of dicta that could confuse future consideration of judgments actually based on Ricci. ). 13 1 The parties agree that Ricci established a new standard 2 for disparate-treatment claims: A disparate-treatment claim 3 is avoidable based on concerns about disparate-impact 4 liability only if there was a strong basis in evidence of 5 such liability. 6 opinion, however, the Court contemplated the reverse 7 scenario-- avoid[ance] of a disparate-impact suit: 8 9 10 11 12 13 14 15 16 Ricci, 129 S. Ct. at 2677. Late in the If, after it certifies the test results, the City faces a disparate-impact suit, then in light of our holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability. Id. at 2681. The city characterizes this one sentence of dicta as 17 establishing a symmetrical companion to Ricci s earlier 18 holding that an employer may avoid disparate-treatment 19 claims based on a strong basis in evidence of disparate- 20 impact liability. 21 may defeat a disparate-impact claim if it had a strong basis 22 in evidence that it would have been subject to disparate- 23 treatment liability. 24 was properly dismissed not because it was precluded but 25 because the Supreme Court s Ricci mandate itself supplied That is, the city argues that an employer The city argues that Briscoe s suit 14 1 the strong basis in evidence of disparate-treatment 2 liability (for not certifying the results). 3 The dicta contemplating a disparate-impact standard 4 symmetrical to the disparate-treatment standard established 5 in the holding is perhaps attributable to a simple logical 6 error. 7 conclusion--an apparent logical truth--derived from the 8 holding: [I]n light of our holding today it should be clear 9 that the City would avoid disparate-impact liability based 10 on the strong basis in evidence that, had it not certified 11 the results, it would have been subject to disparate- 12 treatment liability. 13 When simplified into a conditional statement, this 14 conclusion resembles the converse of--and shares some of the 15 language from--the only express holding in Ricci, 129 S. Ct. 16 at 2677 ( We hold only that, under Title VII, before an 17 employer can engage in intentional discrimination for the 18 asserted purpose of avoiding or remedying an unintentional 19 disparate impact, the employer must have a strong basis in 20 evidence to believe it will be subject to disparate-impact 21 liability if it fails to take the race-conscious, 22 discriminatory action. ), but it has no actual logical The sentence does not present a holding but rather a 129 S. Ct. at 2681 (emphasis added). 15 1 2 relationship to the holding. In any event, we see no way to reconcile the dicta, on 3 which the city s argument relies, with either the Court s 4 actual holding in Ricci or long-standing, fundamental 5 principles of Title VII law: 6 First, all other indications in the opinion are of a 7 holding limited to formulation of a standard for disparate- 8 treatment liability: 9 10 11 12 13 14 15 16 17 18 Id. at 2677 (emphasis added). 19 arguable support in wording that leads up to this holding 20 (set out in the margin).7 We hold only that, under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action. The city s argument finds But the context discusses 7 At one point, the Court broadly describes the case as resolving any conflict between disparate-treatment and disparate-impact claims: Applying the strong-basis-in-evidence standard to Title VII gives effect to both the disparate-treatment and disparate-impact provisions, allowing violations of one in the name of compliance with the other only in certain, narrow circumstances. . . . * * * For the foregoing reasons, we adopt the strong-basis-in-evidence standard as a matter of 16 1 [r]estricting an employer s ability to discard test 2 results --and is thus limited to the express holding.8 3 any event, the Court s precise formulation of its holding 4 (corroborated elsewhere in the majority opinion,9 and by In statutory construction to resolve any conflict between the disparate-treatment and disparate-impact provisions of Title VII. Id. at 2676. 8 The surrounding context clearly limits the broader language quoted in note 7, ante, to an employer s ability to discard test results: [T]he standard appropriately constrains employers discretion in making race-based decisions: It limits that discretion to cases in which there is a strong basis in evidence of disparate-impact liability . . . . * * * Restricting an employer s ability to discard test results (and thereby discriminate against qualified candidates on the basis of their race) also is in keeping with Title VII s express protection of bona fide promotional examinations. * * * [O]nce [a] process has been established and employers have made clear their selection criteria, they may not then invalidate the test results . . . . absent a strong basis in evidence of an impermissible disparate impact. . . . Id. at 2676-77 (emphases added). 9 Earlier, the court summarized its conclusion: We conclude that race-based action like the City s in this case is impermissible under Title VII unless the employer can demonstrate a strong basis in evidence that, had it not taken the 17 1 concurring and dissenting opinions10) supersedes any dicta 2 arguably to the contrary. action, it would have been liable under the disparate-impact statute. Id. at 2664. 10 Justice Alito frames the issue: The question . . . concerns . . . when an employer justifies an employment decision . . . on the ground that a contrary decision would have created a risk of disparate-impact liability. The Court holds--and I entirely agree--that concern about disparate-impact liability is a legitimate reason for a decision of the type involved here only if there was a substantial basis in evidence to find the tests inadequate. Id. at 2683 (Alito, J., concurring) (emphases added and internal quotation marks omitted). In her dissent, Justice Ginsburg frames her proposed holding, which is also limited to a one-way approach: I would therefore hold that an employer who jettisons a selection device when its disproportionate racial impact becomes apparent does not violate Title VII s disparate-treatment bar automatically or at all, subject to this key condition: The employer must have good cause to believe the device would not withstand examination for business necessity. Id. at 2699 (Ginsburg, J., dissenting) (emphasis added). Justice Scalia raises the larger question of whether the disparate-impact provisions are consistent with the Equal Protection Clause, id. at 2682 (Scalia, J., concurring), but does not discuss the scope of the Court s holding. 18 1 Second, the question that Ricci answers for disparate- 2 treatment claims has already been answered for claims of 3 disparate impact. 4 supplied, as to when an act that would otherwise trigger 5 disparate-treatment liability is excusable due to concern 6 over disparate impact. 7 governs disparate-treatment claims, 42 U.S.C. § 2000e-2(a), 8 provides no clarification as to what informs the 9 discriminatory intent or motive analysis. Clarification was needed, which Ricci This is because the subsection that See Watson v. 10 Fort Worth Bank & Trust, 487 U.S. 977, 986 (1988). 11 corresponding question for a disparate-impact claim--when an 12 employment practice that would otherwise trigger disparate- 13 impact liability is excusable due to concern over disparate 14 treatment--is answered by the statutory definition of the 15 claim: Conduct that is job related and consistent with 16 business necessity is permissible even if it causes a 17 disparate impact (unless there is an alternative employment 18 practice that would reduce the disparate impact, which the 19 employer refuses to adopt). 20 need to stretch Ricci to muddle that which is already clear. 21 § 2000e-2(k)(1). There is no Third (and relatedly), these disparate-impact 19 But the 1 parameters are statutory,11 unlike the contours of a 2 disparate-treatment claim, which are predominantly supplied 3 by case law. 4 to shape the contours of a disparate-impact claim would cite 5 and quote the statute, and discuss the interplay between the 6 text and the new principle. 7 pronounced disagreement12 that has accompanied previous 8 revisions of settled disparate-impact principles. 9 e.g., Wards Cove Packing Co. v. Atonio, 490 U.S. 642 10 11 We would expect that any holding that is meant (We would also expect the See, (1989).) Fourth, it is difficult to see how a strong basis in 12 evidence can be established for a disparate-treatment 13 claim. 14 that a court judgment satisfies this burden; but it fails to 15 consider what would suffice other than a court s mandate. The city avoids the issue by the narrow argument 11 The doctrine originated from case law, see Griggs v. Duke Power Co., 401 U.S. 424 (1971), but was later codified by the Civil Rights Act of 1991, see § 2000e-2(k)(1). 12 Although four justices dissented in Ricci, 129 S. Ct. at 2689 (Ginsburg, J., dissenting) (joined by Justices Stevens, Souter, and Breyer), the dissenting opinion did not mention the dicta from the majority opinion contemplating that the city might avoid [future] disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability, 129 S. Ct. at 2681 (majority opinion). 20 1 And the city s argument, framed that way, differs little 2 from nonparty preclusion, which is plagued by the issues 3 discussed above. 4 strong basis in evidence that oneself will later act with 5 discriminatory intent or motive. 6 986. 7 but they would be fiendishly complicated, and therefore 8 unsuitable for a conduct-guiding standard. 9 strong basis in evidence standard that the majority Yet it is hard to see how one can adduce a See Watson, 487 U.S. at Showings other than a court mandate are conceivable,13 In contrast, the 10 opinion in Ricci explicitly establishes to evaluate whether 11 an employer can engage in disparate treatment employs the 12 quantitative metrics of disparate-impact law. 13 disparate-treatment liability, in which intent is a core 14 consideration and for which consistent standards are simply 15 impractical, disparate-impact liability involves 16 quantitative metrics that resonate with an objective strong 17 basis in evidence standard. Unlike See Gulino v. N.Y. State Educ. 13 See, e.g., Joseph A. Seiner and Benjamin N. Gutman, Does Ricci Herald a New Disparate Impact?, 90 B.U. L. Rev. 2181, 2204-09 (2010) (interpreting this sentence in Ricci as establishing a new affirmative defense to disparate-impact liability--similar to qualified-immunity--based upon a complicated, recursive application of Ricci s holding). The theory is intriguing, but is inconsistent with the unavailability of a good-faith defense for disparate-impact liability. See Ricci, 129 S. Ct. at 2682 (Scalia, J., concurring). 21 1 2 Dep t, 460 F.3d 361, 382 (2d Cir. 2006). Fifth, the strong basis in evidence standard, which 3 the majority opinion in Ricci expressly applies to 4 disparate-treatment claims under Title VII, 129 S. Ct. at 5 2677, was borrowed from equal protection case law that 6 analyzed laws with classifications based on race, id. at 7 2675-76; see, e.g., Richmond v. J. A. Croson Co., 488 U.S. 8 469, 500 (1989), and thus neatly extends to statutory claims 9 for intentional discrimination. In contrast, neutral laws 10 with a disproportionately adverse effect upon a racial 11 minority are outside the purview of the Equal Protection 12 Clause. 13 (1979); see also Ricci, 129 S. Ct. at 2683 (Scalia, J., 14 concurring) ( [T]he war between disparate impact and equal 15 protection will be waged sooner or later, and it behooves us 16 to begin thinking about how--and on what terms--to make 17 peace between them. ); id. at 2700 (Ginsburg, J., 18 dissenting) ( The Equal Protection Clause . . . prohibits 19 only intentional discrimination; it does not have a 20 disparate-impact component. ). 21 Ricci s express holding would apply symmetrically to two 22 doctrines that by nature are asymmetrical. Pers. Adm r of Mass. v. Feeney, 442 U.S. 256, 272 22 We cannot expect that 1 Finally, extending the express holding in Ricci to a 2 disparate-impact claim would seem to be unnecessary. 3 employer seeking to protect itself from the interplay 4 between disparate-impact and disparate-treatment liability 5 needs only the guidance from the express holding of Ricci. 6 7 * * An * The Ricci opinion anticipated this case, and discounted 8 the idea that the city would suffer the whipsaw effect that 9 our analysis justifies. To rule for the city, we would have 10 to conclude that the Supreme Court intended to effect a 11 substantial change in Title VII disparate-impact litigation 12 in a single sentence of dicta targeted only at the parties 13 in this action. 14 15 16 III We are sympathetic to the effect that this outcome has 17 on the city, which has duly certified the test as ordered by 18 the Supreme Court but now must defend a disparate-impact 19 suit. 20 Martin. 21 thinking there is a strong basis in evidence of disparate- 22 impact liability--will face the same issue if it loses a The City of Birmingham faced the same issue in Any employer that intentionally discriminates-- 23 1 2 disparate-treatment suit.14 The solutions already exist. First, an employer can 3 seek to join all interested parties as required parties. 4 See Fed. R. Civ. P. 19. 5 readily identifiable: The city could have joined all test- 6 takers prior to the district court s original decision. 7 Briscoe had been a party, the Supreme Court s decision would 8 have precluded this suit. 9 expedient provided by Congress, 42 U.S.C. § 2000e-2(n). The interested parties here were If Second, an employer can use the The 10 city could have moved, prior to the district court s 11 original ruling, for compliance with the notice and 12 opportunity-to-object requirements of § 2000e-2(n), which 13 would have permitted the litigated judgment to have 14 preclusive effect even over nonparties. 15 The Ricci plaintiffs are amici in this case. (At the 16 time of oral argument, Ricci was ongoing in the district 17 court and, judging by the docket sheet, was as contentious 18 as ever; but the parties ultimately settled on July 27, 19 2011. See New Haven Firefighters Settle Claims of Racial 14 One could argue--and the city does, Appellee Br. at 22--that this case is different from the other examples: the Supreme Court ordered it to certify this list for this exam. But that is just an iteration of the untenable preclusion argument. 24 1 Bias, N.Y. Times, July 28, 2011.) They have a fair claim to 2 a clarification. 3 proceed, the Ricci plaintiffs of course remain entitled to 4 the full fruits of the Supreme Court judgment that they 5 obtained. 6 nonparty preclusion as well as to the Supreme Court s order 7 to certify the results, we limit Briscoe s equitable relief 8 insofar as it may interfere with the relief--present and 9 future--afforded to the Ricci plaintiffs by the Although we hold that Briscoe s claim can In order to give effect to bedrock principles of 10 certification of the exam results. 11 superfluous, because Briscoe has repeatedly confirmed that 12 he seeks relief that is fully consistent with the Supreme 13 Court s judgment. 14 21-22; Joint Appendix at 134-35.) (This caveat may be See Appellant Br. at 9-10; Reply Br. at 15 16 CONCLUSION 17 This case is the first in our Circuit to require a 18 precedential examination of Ricci v. DeStefano, 129 S. Ct. 19 2658 (2009). 20 the indications from the Supreme Court in Ricci. 21 careful review of that decision and relevant nonparty 22 preclusion and Title VII case law, we conclude that As we have shown, we cannot reconcile all of 25 After a 1 Briscoe s claim is neither precluded nor properly dismissed. 2 Ricci did not substantially change Title VII disparate- 3 impact litigation or preclusion principles in the single 4 sentence of dicta targeted at the parties in this action. 5 We follow the Court s clear explication of its limited 6 holding. 7 Accordingly, we vacate the judgment of the district 8 court and remand for further proceedings consistent with 9 this opinion. But we express no view as to whether other 10 issues raised below may warrant dismissal of the action, 11 including relevant statutes of limitations, the doctrine of 12 laches, or the unavailability of the requested relief 13 because of Title VII s anti-alteration provision (42 U.S.C. 14 § 2000e-2(l)). 15 26
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