650 F.3d 65 (2nd Cir. 2011), 08-5171-cv (L), United States v. Brennan

Docket Nº:08-5171-cv (L), 08-5172-cv (XAP), 08-5173-cv (XAP) [*], 08-5375-cv (XAP), 08-5149-cv (CON), 08-4639-cv (CON).
Citation:650 F.3d 65
Opinion Judge:CALABRESI, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee-Cross-Appellant, v. John BRENNAN, James G. Ahearn, Scott Spring, and Dennis Mortensen, Intervenors-Appellants-Cross-Appellees, Janet Caldero, Celia I. Calderon, Martha Chellemi, Salih Chioke, Andrew Clement, Kristen D'Alessio, Laura Daniele, Charmaine Didonato, Dawn L. Ellis, Marcia P. Jarrett, Mary Kach
Attorney:Michael E. Rosman (Christopher J. Hajec, on the brief), Center for Individual Rights, Washington, DC, for John Brennan, James Ahearn, Scott Spring, Dennis Mortensen, John Mitchell, Eric Schauer, and Ruben Miranda. Gregory B. Friel, (Dennis J. Dimsey and April J. Anderson, on the brief) for Lorett...
Judge Panel:Before: CALABRESI, RAGGI, and CUDAHY,[1] Circuit Judges. Judge RAGGI, concurs in the judgment of the Court and files a separate opinion. REENA RAGGI, Circuit Judge, concurring in the judgment:
Case Date:May 05, 2011
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 65

650 F.3d 65 (2nd Cir. 2011)

UNITED STATES of America, Plaintiff-Appellee-Cross-Appellant,

Janet Caldero, Celia I. Calderon, Martha Chellemi, Salih Chioke, Andrew Clement, Kristen D'Alessio, Laura Daniele, Charmaine Didonato, Dawn L. Ellis, Marcia P. Jarrett, Mary Kachadourian, Kathleen Luebkert, Adele A. McGreal, Margaret McMahon, Marianne Manousakis, Sandra D. Morton, Maureen Quinn, Harry Santana, Carl D. Smith, Kim Tatum, Frank Valdez, and Irene Wolkiewicz, Intervenors-Appellees-Cross-Appellants,

Pedro Arroyo, Jose Casado, Celestino Fernandez, Kevin LaFaye, Steven Lopez, Anibal Maldonado, James Martinez, Wilbert McGraw, Silvia Ortega De Green, and Nicholas Pantelides, Intervenors-Appellees,

v.

John BRENNAN, James G. Ahearn, Scott Spring, and Dennis Mortensen, Intervenors-Appellants-Cross-Appellees,

New York City Department of Education; City of New York; Martha K. Hirst, Commissioner, New York City Department of City Administrative Services; New York City Department of Citywide Administrative Services, Defendants-Appellees.

John Brennan, James Ahearn, Scott Spring, Dennis Mortensen, John Mitchell, and Eric Schauer, Plaintiffs-Appellants,

v.

Attorney General of the United States; Assistant Attorney General of the United States for Civil Rights; U.S. Department of Justice; New York City Department of Education; City of New York; New York City Department of Citywide Administrative Services; Martha K. Hirst, Commissioner, New York City Department of City Administrative Services, Defendants-Appellees,

Janet Caldero, Celia I. Calderon, Martha Chellemi, Salih Chioke, Andrew Clement, Kristen D'Alessio, Laura Daniele, Charmaine Didonato, Dawn L. Ellis, Marcia P. Jarrett, Mary Kachadourian, Kathleen Luebkert, Adele A. McGreal, Margaret McMahon, Marianne Manousakis, Sandra D. Morton, Maureen Quinn, Harry Santana, Carl D. Smith, Kim Tatum, Frank Valdez, and Irene Wolkiewicz, Intervenors-Appellees,

Pedro Arroyo, Jose Casado, Celestino Fernandez, Kevin LaFaye, Steven Lopez, Anibal Maldonado, James Martinez, Wilbert McGraw, Silvia Ortega De Green, and Nicholas Pantelides, Intervenors-Appellees.

Ruben Miranda, Plaintiff-Appellant,

v.

New York City Department of Education, Defendant-Appellee.

Nos. 08-5171-cv (L), 08-5172-cv (XAP), 08-5173-cv (XAP) [*], 08-5375-cv (XAP), 08-5149-cv (CON), 08-4639-cv (CON).

United States Court of Appeals, Second Circuit.

May 5, 2011

Argued: Feb. 1, 2010.

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[Copyrighted Material Omitted]

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Michael E. Rosman (Christopher J. Hajec, on the brief), Center for Individual Rights, Washington, DC, for John Brennan, James Ahearn, Scott Spring, Dennis Mortensen, John Mitchell, Eric Schauer, and Ruben Miranda.

Gregory B. Friel, (Dennis J. Dimsey and April J. Anderson, on the brief) for Loretta King, Acting Assistant Attorney General, Civil Rights Division, U.S. Department of Justice, Washington, D.C., for the United States, the Attorney General, the Assistant Attorney General, and the Department of Justice.

Ariela M. Migdal, (Emily J. Martin, Araceli Martinez-Olguin, and Lenora M. Lapidus, on the brief), American Civil Liberties Union Foundation Women's Right's Project, New York, NY; Melissa R. Chernofsky, Attorney-at-Law, Brooklyn, NY, on the brief, for Janet Caldero et al.

Matthew Colangelo, (John Payton, Debo P. Adegbile, and Joy Milligan, on the brief), NAACP Legal Defense & Education Fund, Inc., New York, NY; Joshua Civin, NAACP Legal Defense & Education Fund, Washington, DC, for Pedro Arroyo et al.

Rachael N. Pine, Gillian L. Thomas, Legal Momentum, New York, NY, for Amicus Curiae Legal Momentum.

Page 69

The New York City Department of Education, the City of New York, Martha K. Hirst, and the New York City Department of Citywide Administrative Services, did not appear at oral argument and did not submit a brief.

Before: CALABRESI, RAGGI, and CUDAHY,1 Circuit Judges.

Judge RAGGI, concurs in the judgment of the Court and files a separate opinion.

CALABRESI, Circuit Judge:

Table of Contents
Introduction 70
Factual and Procedural Background 72
I. The Parties 72
II. General Factual Background 73
A. Custodians and Custodian Engineers 73
B. The Importance of Seniority 73
1. Transfers 74
2. Temporary Care Assignments 75
3. Layoffs 76
C. The Hiring Process 76
D. Provisional Employees 77
III. The Government's Investigation and Lawsuit 77
IV. The Settlement 78
A. Settlement Terms 78
B. Court Approval 79
V. The Settlement Is Implemented 80
VI. The Second Circuit Vacates and Remands 80
VII. Proceedings on Remand 81
A. The Brennan Plaintiffs Intervene and File a Related Complaint 81
B. The Government Changes Its Position; Offeree Interventions Result 82
VIII. The District Court's Opinions 83
A. The September 11, 2006 Opinion 83
B. The April 20, 2007 Opinion 86
C. The May 28, 2008 Opinion 87
IX. The Miranda Lawsuit 89
X. The Stay Applications 89
Discussion 89
I. Title VII Background 89
II. Procedural Posture and Standard of Review 91
III. Prima Facie Case and Defenses 92
IV. Affirmative Action 96
A. Legal Background 96
B. Application of Johnson and Weber to the Settlement Agreement 97
1. Ricci 97
2. Is the Implementation of the Settlement Agreement an Affirmative Action Plan? 99
a. What Is an Affirmative Action Plan? 99
b. The Employer Action in This Case 104
V. Strong Basis in Evidence 109
A. What Is a Strong Basis in Evidence? 110
1. Strong Basis in Evidence of Liability 110
2. Strong Basis in Evidence of Necessity 113
B. The Government's " Actual Violation" Standard 114
1. Ricci Does Not Require a Showing of Actual Liability or Actual Victims 115
2. The Consent-Decree, Settlement-Approval, and § 706(g) Cases Do Not Apply in the § 703(a) Context 116
3. The Brennan Plaintiffs Have Another Remedy for Any Breach of Contract by the City Defendants 120
VI. Application of the Strong-Basis-in-Evidence Standard 124
A. Prima Facie Case 125
1. Testing Discrimination 125
2. Recruiting Discrimination 125
B. Job-Related and Less Discriminatory Alternative 127
C. Necessity and Make-Whole Relief 128
VII. Equal Protection 134
VIII. Class Certification 136
IX. Remedies 137
X. Conclusion 140
Page 70 Introduction In 1996, the United States (the " Government" ) sued the New York City Board of Education and related parties (the " City Defendants" ) claiming a violation of Title VII's prohibition of disparate impact selection measures. The suit alleged that the City had, in hiring Custodians and Custodian Engineers (" CEs" ) for its schools, (1) used, on three separate occasions, civil service examinations which discriminated against blacks and Hispanics, and (2) used recruiting practices which discriminated against blacks, Hispanics, Asians, and women. The parties entered into a settlement agreement in 1999 and asked the district court to enter it as a consent decree. The magistrate judge (Levy, M.J. )— who had jurisdiction by consent— approved the entire agreement, despite objections that primarily came from incumbent employees who were denied leave to intervene in the suit. The incumbent employees were unaffected by many of the agreement's provisions, but they objected to four paragraphs that provided permanent appointments and retroactive competitive seniority to 63 black, Hispanic, Asian, or female individuals, the " Offerees." 2 The City Defendants implemented the disputed Page 71 parts of the settlement while the incumbent employees' appeal from their exclusion was pending. In 2001, this Court vacated and remanded, holding that the district court should have permitted the incumbent employees to intervene. After the remand, the incumbent employees asked the district court to have the case sent to a district judge rather than the magistrate judge; this request was granted. They then brought two reverse-discrimination lawsuits against the City under § 703(a) of Title VII and the Equal Protection Clause (via 42 U.S.C. § 1983); these cases were consolidated with the original 1996 Government lawsuit. The new lawsuits sought equitable relief and damages. The incumbent employees also requested class certification. Meanwhile, the Government decided that it would defend the settlement agreement only in part. This prompted two groups of beneficiaries of the settlement to intervene to defend the retroactive seniority that the settlement had granted them. One group, the Arroyo Intervenors, consisted of ten Offerees who had taken and failed a challenged exam; the other group, the Caldero Intervenors, consisted of twenty-two Offerees who had not taken any challenged exam. After years of contentious litigation, extensive discovery, and a set of three opinions spanning a total of approximately 150 pages, the district court (Block, J. ) entered a final judgment. It held that some of the retroactive seniority provided by the settlement agreement violated Title VII, and that some of the retroactive seniority that did not violate Title VII violated the Equal Protection Clause. But, the court concluded that a significant remainder of the retroactive seniority was lawful. In particular, the court held (1) that the retroactive seniority of the test-failer Offerees 3 did...

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