by Art Gutman Ph.D., Professor, Florida Institute of Technology

I reported on the district court ruling on this case in a DCI Alert dated May 17, 2010. To refresh your memory, Michael Briscoe was an applicant for lieutenant in the Ricci v. DeStefano case [129 S. Ct. 2658 (2009)]. After the Supreme Court’s ruling, District Court Judge Janet Bond Arteton certified the promotions to lieutenant and captain based on the 2003 exams central to the Ricci case. Briscoe then lodged an adverse impact claim that was dismissed on April 28, 2010 by District Court Judge Charles S. Haight, Jr. Briscoe alleged that he should be able to sit for testing related to promotion to Director of Training scheduled for April 30 and May 1, 2010, a position open for lieutenants and captains. Biscoe claimed that he was eligible for the position on the basis that he would win his adverse impact claim.

Briscoe’s main beef was the 60-40 weighting for written versus oral tests. He was the top scorer among 77 applicants for lieutenant on the oral exam, but ranked 24th overall because of his poor performance on the written test. Briscoe claimed that a 70-30 oral versus written weighting “would be equally good or better at identifying the best-qualified candidates for promotion, and would have less disparate impact on racial minorities.”

Judge Haight ruled that Ricci precluded Briscoe’s claims because the City of New Haven was protected for making the promotions because it now had a strong basis in evidence for believing it would lose a disparate treatment claim if these promotions were not made. He emphasized that the proper times for Briscoe to challenge the weighting were in 2003, when the exams were administered, and in 2004, when the Ricci plaintiffs sued. He also stressed the narrowness of his ruling as follows:

It is important to emphasize the narrow boundaries of this opinion. I am concerned only with the effect of Ricci upon Briscoe's disparate-impact challenge to the 2003 examinations. That limited reach is dictated by the fact that the complaints of the Ricci plaintiffs and Briscoe relate solely to the 2003 examinations. Nothing in this opinion would foreclose or diminish the rights of Briscoe or any other firefighter to challenge a subsequent NHFD promotional examination on the same grounds that Briscoe seeks to assert in this case with respect to the 2003 examinations.

At the time, I opined that the central argument by Biscoe, though defeated by the district court in this particular case, was still “fair game” for future cases. Apparently, the argument still lives for the Briscoe case.

What’s particularly interesting in the appeals case is that the City abandoned its “preclusion” theory and argued instead that the “strong basis in evidence” test for disparate treatment applies equally to adverse impact claims. The City’s basis for this argument is from that part of the Supreme Court ruling in Ricci that states:

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.

That seems like a fairly clear statement. However, a three-judge panel of the 2nd Circuit questioned the generality of this “one sentence dicta.” In an opinion written by Circuit Court Judge Dennis J. Jacobs, the court ruled:

The city characterizes this one sentence of dicta as establishing a symmetrical companion to Ricci's earlier holding that an employer may avoid disparate-treatment claims based on a "strong basis in evidence" of disparate-impact liability. That is, the city argues that an employer may defeat a disparate-impact claim if it had a strong basis in evidence that it would have been subject to disparate-treatment liability. The city argues that Briscoe's suit was properly dismissed not because it was precluded but because the Supreme Court's Ricci mandate itself supplied the strong basis in evidence of disparate-treatment liability (for not certifying the results).

Judge Jacobs conceded that Supreme Court anticipated Briscoe’s lawsuit. However, at the same time, he also ruled that to favor the City in this case, “we would have to conclude that the Supreme Court intended to effect a substantial change in Title VII disparate-impact litigation in a single sentence of dicta targeted only at the parties in this action”, to which he concluded that “Ricci did not substantially change Title VII disparate-impact litigation or preclusion principles in the single sentence of dicta targeted at the parties in this action. Jacobs then vacated the district court ruling and remanded, expressing “no view as to whether other issues … may warrant dismissal of the action, including relevant statutes of limitations, the doctrine of laches, or the unavailability of the requested relief because of Title VII'S anti-alteration provision (42 U.S.C. ß 2000e-2(l)).”

Clearly, this case is not over. However, it’s not clear where it goes from here. Stay tuned --- we will keep you abreast of any further actions in this case.

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