Ricci v. Destefano

530 F.3d 88

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.

Docket No. 06-4996-cv.

United States Court of Appeals, Second Circuit.

Argued: December 10, 2007.

Decided: June 9, 2008.

Order issued: June 12, 2008.

En Banc Concurrence Decided: June 13, 2008.

Karen Lee Torre, New Haven, CT, for plaintiffs-appellants.

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

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 Calabresi is filing a concurring opinion; Judge Katzmann is filing a concurring opinion, in which Judges Calabresi, Pooler, Sack, Sotomayor and B.D. Parker join; Judge B.D. Parker is filing a concurring opinion, in which Judges Calabresi, Pooler, Sack and Sotomayor join; Chief Judge Jacobs is filing a dissenting opinion; and Judge Cabranes is filing a dissenting opinion, in which Chief Judge Jacobs and Judges Raggi, Wesley, Hall and Livingston join.

GUIDO CALABRESI, Circuit Judge, concurring in the denial of rehearing en banc:

I join entirely Judge Parker's opinion concurring in the denial of a rehearing en banc. I also join fully Judge Katzmann's opinion because, as he points out, going en banc is unnecessary as all that is involved in this case has already been described in the filed opinions. I write today to emphasize one reason that, I believe, makes it particularly inappropriate for us to exercise our purely discretionary power to review this case en banc.

The question of whether a municipality incurs liability when, motivated only by a desire to comply with federal anti-discrimination law, it takes race-neutral actions that have racially significant consequences, is undoubtedly an interesting one.¹ To reach that question one must, however, first examine whether the municipality's proffered desire to comply with federal law is in good faith and not a pretext. After that, we must ask whether that asserted desire, although in good faith, is not also in part motivated by other, racial, considerations. In this case, the municipality claimed that its actions were grounded solely in the desire to comply with federal law. The plaintiffs alleged instead that this was not the real reason for the city's actions, and asserted that the city had other less salubrious, and directly racial-political, reasons for what it did.

The district court and the panel readily rejected the notion that the city's stated reason was just a pretext. But neither court went on to consider whether the city was influenced by mixed motives. And that is why Judge Cabranes, in his dissent from the denial of en banc review, suggests that, since the plaintiffs alleged that their race motivated the defendants' decision, the district court should have undertaken such a mixed motive analysis. He contends, that is, that the courts should have examined the situation as one in which a legitimate motive may have combined with an improper motive to bring about the challenged action. See Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). He would be precisely right ... except for the fact that that type of analysis is not available to us in this case. It is not available for the most traditional of legal reasons. The parties did not present a mixed motive argument to the district court or to the panel.²

It is the unavailability of mixed motive analysis that makes this case an especially undesirable one for elective review. The interesting issue the case might present— concerning the obligations of a municipality seeking only to comply with the relevant federal anti-discrimination law—is, in the circumstances before us, clouded by the allegations that something more is going on. Given the plaintiffs' failure to argue mixed-motive analysis, those allegations cannot be adequately evaluated. But they nevertheless cannot help but affect how we look at the city's actions. And they may even influence, inappropriately, how we are inclined to rule on the underlying, "interesting" issue.

Difficult issues should be decided only when they must be decided, or when they are truly well presented. When they need not be decided—and rehearing en banc is always a matter of choice, not necessity—it is wise to wait until they come up in a manner that helps, rather than hinders, clarity of thought. That is not so in this case.

For this reason too, I concur in the denial of rehearing en banc.

ROBERT A. 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 long-standing 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, 105 S.Ct. 803, 83 L.Ed.2d 795 (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, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995), and City of Richmond v. J.A. Croson Co., 488 U.S. 469, 109 S.Ct. 706, 102 L.Ed.2d 854 (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...