# United States v. Brennan

> Court of Appeals for the Second Circuit · May 5, 2011 · 650 F.3d 65

URL: https://www.frixlaw.com/law-library/cases/9885493

## Case

- **Full name:** UNITED STATES of America, Plaintiff-Appellee-CrossAppellant, 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, Aníbal 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, DefendantsAppellees, 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, Aníbal 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, DefendantAppellee
- **Court:** Court of Appeals for the Second Circuit
- **Decided:** May 5, 2011
- **Citations:** 650 F.3d 65; 2011 WL 1679850
- **Precedential status:** Published
- **Opinion:** Concurrence by Raggi
- **Judges:** Gregory B. Friel
- **Cited by:** 108 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9885493

## How later opinions describe it (automated extraction)

- holding that employer defending against disparate treatment claim has burden to articulate legitimate, non-discriminatory reason for its prima facie discriminatory practice
- holding that employer defending against disparate treatment claim has burden to articulate legitimate, nondiscriminatory reason for its prima facie discriminatory practice

## Opinion text

REENA RAGGI, Circuit Judge,
concurring in the judgment:
I join the majority in concluding (1) that the district court judgment can be affirmed insofar as it (a) granted class certification to the Brennan Intervenors, and (b) declared Ciro Dellaporte not a member of a protected class entitled to relief under the challenged settlement, but (2) that the judgment must be vacated in all other respects and remanded for further consideration in light of Ricci v. DeStefcmo, — U.S.-, 129 S.Ct. 2658 , 174 L.Ed.2d 490 (2009). In reaching this conclusion, I agree with the majority that Ricci is not limited, as the Caldero and Arroyo Intervenors urge, to its particular facts. I also agree that the challenged settlement cannot be characterized as an affirmative action plan, so that we need not consider these intervenors’ argument that Ricci does not apply to such plans. With due respect, however, I cannot join in the majority opinion because I think its extended discussion of Title VII jurisprudence generally, and the scope of the Ricci rule in particular, is not required to our decision to remand and yields an abundance of dicta that could confuse future consideration of judgments actually based on Ricci . As the Supreme Court has cautioned, “however helpful it might be for us to adjudge every pertinent statutory and constitutional issue” that could arise in the application of a law or decision, “we cannot properly reach out and decide matters not before us.” Granfinanciera, S.A. v. Nordberg, 492 U.S. 33 , 64 n. 19, 109 S.Ct. 2782 , 106 L.Ed.2d 26 (1989); see United States v. Tomasi, 313 F.3d 653, 660 (2d Cir.2002) (Sotomayor, J., concurring in the judgment) (“While clarity in the law is always to be desired, judges should not indulge themselves by reaching out to decide issues not squarely before them in order to accomplish this result.”); see also PDK Labs., Inc. v. United States D.E.A., 362 F.3d 786, 799 (D.C.Cir.2004) (Roberts, J., concurring in part and concurring in the judgment) (identifying as “cardinal principle of judicial restraint” that “if it is not *141 necessary to decide more, it is necessary not to decide more”).
A. Ricci Requires No Gloss from This Court To Permit Application by the District Court on Remand
In Ricci , a case originating in this circuit, the Supreme Court addressed the same question raised here: “whether the purpose to avoid disparate-impact liability excuses what otherwise would be prohibited disparate-treatment discrimination.” Ricci v. DeStefano, 129 S.Ct. at 2674 . Acknowledging that “statutes and principles” seemed to “point in different directions,” the Court set itself the “task ... to provide guidance to employers and courts for situations when these two prohibitions could be in conflict absent a rule to reconcile them.” Id. Toward that end, the Court pronounced the following rule:
[B]efore 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.
Id. at 2677 . The Court explained that the requisite strong basis had to be “objective,” id., and could not be satisfied by “a few stray (and contradictory) statements in the record,” id. at 2680 . Further, it applied the strong-basis-in-evidence requirement to all three prongs of disparate-treatment analysis set forth in 42 U.S.C. § 2000e-2(k)(l)(A), see id. at 2677-79 (concluding that (1) “City was faced with a prima facie case of disparate-impact liability,” but (2) the evidence raised “no genuine dispute that the [discarded] examinations were job-related,” and (3) respondents “lacked a strong basis in evidence of an equally valid, less discriminatory testing alternative that the City, by certifying the examination results, would necessarily have refused to adopt”). The Supreme Court apparently did not think that district courts required any further guidance to begin applying the stated rule: “Our holding today clarifies how Title VII applies to resolve competing expectations under the disparate-treatment and disparate-impact provisions.” Id. at 2681. Thus, I would simply remand this case for further consideration in light of Ricci without attempting to anticipate or resolve questions that are not now before us and that may never arise in this case. Case-by-case review of judgments actually based on Ricci will afford sufficient opportunity to discuss application of the strong-basis-in-evidence rule in particular circumstances.
B. Concerns Raised by The Majority’s Discussion
The majority’s efforts to define the parameters of the Ricci rule in advance of application by the district court raise a number of concerns in my mind. The following are merely illustrative.
First, in order to engage in a detailed discussion of Title VII law generally and Ricci in particular in light of the evidence in this case, the majority finds itself obliged at the outset to decide the standard applicable to review of the factual record. While on an appeal from an award of summary judgment, we usually review the facts in the light most favorable to the non-moving party, see, e.g., Wilson v. C.I.A., 586 F.3d 171, 183 (2d Cir.2009), the majority elects to employ the “clear error” standard applicable after trial, see, e.g., Skoros v. City of New York, 437 F.3d 1, 12 (2d Cir.2006). This choice is grounded more in record confusion, however, than in law. As the majority explains, while the district court disposed of “the vast majority of the relevant issues ... upon cross- *142 motions for summary judgment ..., in what appears to be a confusion about the case’s procedural posture,” some issues were resolved after “‘evidentiary hearings.’ ” Ante at [91-92]. Unable to discern “why the district court held these hearings, rather than a trial,” 1 the majority simply decides “it best to treat the hearings as separate bench trials on separate issues,” and to review the findings for “clear error.” Id. at [92]. This course of action has consequences for the ensuing discussion as the difference between review in the light most favorable to the nonmovant and clear error review can be significant: the former standard favors the loser; the latter favors the winner. There is no need to resolve this review standard to reach a remand decision in this case. Indeed, there is good reason not to do so. On remand, the factual record may change as the parties seek better to address Ricci’s requirements. Moreover, the district court can then clarify what, if any, “fact-finding” informs a new final judgment.
Second, the majority concludes that the Brennan Intervenors’ claim of disparate-treatment discrimination is properly reviewed according to the three-step analytical framework outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 , 93 S.Ct. 1817 , 36 L.Ed.2d 668 (1973). The extensive discussion of McDonnell Douglas that accompanies this determination is not only unnecessary to our decision to vacate and remand, but it also risks confusing the question of discriminatory intent with the question of whether even actions taken with such intent can be excused by a purpose to avoid disparate-impact liability. McDonnell Douglas analysis was devised to answer the first question but, as a number of the judges of this court have recognized, it is not well-suited to answer the second. See Ricci v. DeStefano, 530 F.3d 88, 99-100 (2d Cir.2008) (Cabranes, J., with Jacobs, C.J., Raggi, Wesley, Hall, and Livingston, JJ.) (dissenting from denial of rehearing en banc) (suggesting that issue should be resolved by mixed-motive analysis); accord id. at 89 (Calabresi, J.) (concurring in denial of rehearing en banc) (agreeing that mixed-motive analysis should have been used but for parties’ failure to present argument to district court or original appellate panel).
Significantly, in Ricci, the Supreme Court neither mentioned nor used McDonnell Douglas analysis in holding that plaintiffs were entitled to summary judgment on their claim of discriminatory treatment. See Ricci v. DeStefano, 129 S.Ct. at 2681 . Rather, after observing that the City defended against the treatment claim by professing a purpose to avoid disparate-impact liability, see id. at 2673 , the Court proceeded to consider the three factors relevant to a disparate-impact claim, see 42 U.S.C. § 2000e-2(k)(l)(A), and concluded that defendants lacked a strong basis in evidence to think that they would have been subjected to such liability had they failed to take the challenged race-conscious, discriminatory actions. See Ricci v. DeStefano, 129 S.Ct. at 2677-81 .
No different approach is needed in this case, where defendants do not dispute that their challenged settlement actions were animated by intentional considerations of race, ethnicity, and gender. Their defense, as in Ricci, is that “the purpose to avoid disparate-impact liability excuses what otherwise would be prohibited disparate-treatment discrimination.” Id. at 2674. A decision to remand for reconsideration in light of Ricci does not require us to shoehorn this defense into the second *143 step of McDonnell Douglas analysis. Indeed, the fit is awkward. At that step, a defendant need only articulate a nondiscriminatory purpose for his actions, not demonstrate that intentional discrimination is supported by a valid defense with a strong basis in evidence, as Ricci requires. See Holcomb v. Iona Coll., 521 F.3d 130, 141 (2d Cir.2008) (explaining that “[i]t is not our task, at the second stage of the McDonnell Douglas framework, ... to determine whether the [defendant’s] explanation of its action is convincing” but rather only to “ask whether defendant has introduced evidence that, ‘taken as true, would permit the conclusion that there was a nondiscriminatory reason’”) (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 509 , 113 S.Ct. 2742 , 125 L.Ed.2d 407 (1993) (emphasis in Hicks)).
Nor does our decision to remand require us now to decide whether, despite a strong basis in evidence, a defendant’s claimed purpose to avoid disparate-impact liability might be attacked as pretextual. See Ricci v. DeStefano, 129 S.Ct. at 2683 (Alito, J., concurring). Much less need we decide that such a pretext attack occurs at step two of McDonnell Douglas analysis, as the majority indicates. 2
Because defendants’ challenged settlement conduct was plainly animated by race, ethnicity, and gender considerations, here, as in Ricci, any “analysis begins,” not with McDonnell Douglas, but “with this premise: [defendants’] actions would violate the disparate-treatment prohibition of Title VII absent some valid defense.” Id. at 2673 (emphasis added). Thus, in ordering remand, we can leave it to the able district judge to decide in the first instance whether defendants have the strong basis in evidence necessary to pursue a defense of disparate-impact liability. See id. at 2677. 3
Third, the majority engages in an extensive discussion of affirmative-action precedent and strongly suggests that such plans would continue to be judged by reference to standards derived from Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616 , 107 S.Ct. 1442 , 94 L.Ed.2d 615 (1987), and United Steelworkers of America v. Weber, 443 U.S. 193 , 99 S.Ct. 2721 , 61 L.Ed.2d 480 (1979), rather than Ricci. The matter is by no means clear. As the majority recognizes, the Supreme Court in Ricci did not so condition its ruling, signaling that “its core holding applies whenever an employer takes race conscious action ‘for the asserted purpose of avoiding or remedying an unintentional disparate impact.’ ” Ante at [104] (quoting Ricci v. DeStefano, 129 S.Ct. at 2677 (emphasis added by majority)). Because this *144 case does not involve an affirmative-action plan, there is no need to “harmonize[]” Ricci with affirmative-action precedent to order remand, much less to do so in a way that could be construed to cabin Ricci to cases challenging make-whole individualized relief. Id. at [102]. To be sure, the majority’s earlier statement that “[i]n light of Ricci,” Johnson/Weber analysis “extends, at most, to circumstances in which an employer has undertaken a race- or gender-conscious affirmative action plan designed to benefit all members of a racial or gender class in a forward-looking manner only,” id. at [72] (emphasis in original), appears properly to leave for another day any controlling resolution of Ricci’s application to affirmative-action challenges. But that is all the more reason for this panel to exercise restraint and to order remand without anticipating cases not now before us.
Fourth, the majority attempts to provide the district court with detailed guidance as to how to apply the Ricci strong-basis-in-evidence test to the record facts. This too is unnecessary to our decision to remand and puts the cart before the horse. However appropriate it may be for an appellate panel to provide instruction when a district court has misapplied Supreme Court precedent, such instruction is premature when a remand is ordered for application of a new Supreme Court decision. That is particularly so here, where, as I noted earlier, the Supreme Court signaled in Ricci that its own opinion was intended to provide the necessary “guidance” by “clarif[ying] how Title VII applies to resolve competing expectations under the disparate-treatment and disparate-impact provisions” of Title VII. Ricci v. DeStefano, 129 S.Ct. at 2674, 2681 . In these circumstances, we should let Ricci speak for itself on remand without added gloss from this panel.
In particular, I question the majority’s attempt to “hold” in the absence of any judgment applying Ricci, what is and is not sufficient to satisfy the strong-basis-in-evidence requirement. Ante at [109-10], Holdings consist of determinations necessary or pivotal to a decision; judicial statements that are unnecessary to the decision in the case are mere dicta. See United States v. Rubin, 609 F.2d 51 , 69 n. 2 (2d Cir.1979) (Friendly, J., concurring) (“A judge’s power to bind is limited to the issue that is before him; he cannot transmute dictum into decision by waving a wand and uttering the word ‘hold.’ ”); see also Black’s Law Dictionary 800 (defining “holding”), 1177 (defining “obiter dictum ”) (9th ed.2009). Our decision to remand this case for application of Ricci’s strong-basis-in-evidence standard does not require us now to pronounce principles of sufficiency for identifying when that standard is met.
I am, moreover, dubious of the majority’s pronouncement that, “under Ricci, a ‘strong basis in evidence’ ” requires “less than the preponderance of the evidence that would be necessary for actual liability.” Ante at [110], To be sure, in Ricci, the Supreme Court stated that the strong-basis-in-evidence requirement is “not so restrictive that it allows employers to act only when there is a provable, actual violation.” Ricci v. DeStefano, 129 S.Ct. at 2674 . But there is a difference between the preponderance finding of a violation made by a jury after trial and a court’s identification of sufficient evidence to permit a preponderance finding at trial, a difference that I fear may be lost in the majority’s broad “holding.” A party who cannot produce sufficient record eiddence to support a possible preponderance finding by a jury on an issue on which the party bears the burden is going to wind up with summary judgment awarded against him. At some point, this court may have to consider whether a “strong basis in *145 evidence” must be sufficient to survive a summary judgment motion. After all, on such a motion, evidence is viewed in the light most favorable to the non-moving party, which means that even some weak cases can survive summary judgment. We need not decide that question, however, to order remand in this case. Therefore, we also need not “hold” that Ricci can be satisfied on less evidence than would permit a preponderance finding at trial. Indeed, on remand, the district court may find support for the disparate-impact liability defense so compelling or deficient as not to require a precise definition of the standard of proof. That was, after all, the circumstance in Ricci.
Fifth, the majority also discusses in some detail various challenges that the Brennan Intervenors might raise to defendants’ disparate-impact-liability defense. Again, this discussion is unnecessary to our decision to remand. Further, it is premature now to rule that certain challenges could not defeat the defense in this case, or to imply that certain evidence is inadmissible. These matters are best decided in the first instance by the district court. Certain challenges may be resolved on remand, whether as a matter of law or fact, in ways that will narrow or even eliminate the need for further appellate review.
As indicated at the outset, these concerns are illustrative and not exhaustive. Nevertheless, they suffice to explain why I join in the Court’s decision to affirm in part and to vacate and remand in part without also joining in the majority opinion. Rather, I would simply conclude (1) that the district court judgment can be affirmed insofar as it (a) granted class certification to the Brennan Intervenors, and (b) declared Ciro Dellaporte not a member of a protected class entitled to relief under the challenged settlement, but (2) that the judgment must be vacated in all other respects and remanded for further consideration in light of Ricci.
. Motions for preliminary injunction as well as summary judgment were pending before the district court; it is not clear which prompted the hearings.
. Under McDonnell Douglas analysis, a plaintiff claiming pretext must show not only that the stated non-discriminatory explanation was false, but also that discrimination was the real reason for the challenged action. See, e.g., St. Mary's Honor Ctr. v. Hicks, 509 U.S. at 515-16 , 113 S.Ct. 2742 . But where a party engages in undeniably race-conscious conduct, so as to be liable for discriminatory treatment absent a valid defense, see Ricci v. DeStefano, 129 S.Ct. at 2673 (quoted in next paragraph of text), a showing that defendant’s true purpose was not to avoid disparate-impact liability may defeat the defense without any need for further inquiry as to discriminatory intent. In any event, there is no reason to explore these issues in advance of an appeal in a case in which they were raised.
. I do not predict whether a case might ever arise in which an employer both denies that a certain action was animated by impermissible considerations and asserts that the action was, in any event, excused by a purpose to avoid discriminatory-impact liability. When such a case arises, courts can consider whether McDonnell Douglas analysis would properly apply to the question of intent, with Ricci analysis then applied to the discriminatory-impact-liability defense. That, however, is not this case.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9885493. Public record. Not legal advice.